PETITIONER:
UMESH CHANDRA
Vs.
RESPONDENT:
STATE OF RAJASTHAN
DATE OF JUDGMENT02/04/1982
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
DESAI, D.A.
VARADARAJAN, A. (J)
CITATION:
1982 AIR 1057 1982 SCR (3) 583
1982 SCC (2) 202 1982 SCALE (1)335
CITATOR INFO :
RF 1987 SC1501 (2,9)
RF 1991 SC1494 (7)
ACT:
Rajasthan Children Act,, 1970-Material date for
determining age of delinquent-Is it date of commission of
offence or date of trial ?
Indian Evidence Act 1872-S. 35-Relevance of entry in
school record for proof of age-Should the record be kept by
public officer ?
HEADNOTE:
The Rajasthan Children Act, 1970, provides that any
person below the age of 16 years should be presumed to be a
child and that a delinquent child should be tried by a
Children's court in accordance with the procedure laid down
therein.
The appellant was charged under ss. 364 and 302,
I.P.C., in connection with an occurrence that took place in
Tonk district on March 12, 1973. A preliminary objection
that the Sessions Judge was not competent to try the case of
The appellant as he was a child under the provisions of the
Children Act was overruled by the trial court.
The revision filed by the appellant against the
decision of the trial court was dismissed by the High Court
which held that the Children Act was not applicable to the
appellant as that Act had not been enforced in Tonk district
on the date of the occurrence. The High Court further held
that the appellant had failed to prove that he was below the
age of 16 years.
On being directed by this Court to ascertain the actual
date of birth, the High Court held that the date of birth of
the appellant was September 22, 1956; and, therefore, he was
over 16 years on the date of the occurrence. The High Court
rejected the documents produced from the first two schools
attended by the appellant which showed his date of birth to
be June 22, 1957, for the reason that those documents had
not been kept or made by a public officer; it relied on an
affidavit furnished by the father of tho appellant while
admitting him to the third school in which the date of birth
had been changed to September 22, 1956. The explanation of
the appellant's father that the date of birth had been
changed to fulfil the requirement of age under the Rajasthan
Board of Secondary Regulations to enable the appellant to
appear in the Higher Secondary Examination at the
appropriate time was not accepted.
Allowing the appeal,
584
^
HELD: 1. (a) The relevant date for applicability of the
Rajasthan Children Act, 1970 so far as the age of the
accused, who claims to be a child, is concerned, is the date
of the occurrence and not the date of the trial as is clear
from the provisions of ss. 3 and 26 of the Act. [594 C]
(b) At the time of the occurrence, the appellant was
undoubtedly a child within the provisions of the Act. [592
H]
(c) The question whether the appellant could be tried
as a child if he had become more than 16 years by the time
the case went up to the court, does not survive as the Act
has now been enforced in the entire State. A combined
reading of ss. 3 and 26 clearly shows that the statute takes
care of contingencies where proceedings in respect of a
child were pending in any court on the date on which the Act
came into force. Section 26 in terms lays down that the
court should proceed with the case but after having found
that the child has committed the offence it is debarred from
passing any sentence but is obliged to forward the child to
the Children's court for passing orders in accordance with
the Act. [592 H; 593 A; 593 F-G]
(d) The judgment of the Sessions Judge as affirmed by
the High Court be set aside and the Additional Sessions
Judge, Jaipur, be directed to try the accused and if he gave
a finding that the accused was guilty, he shall forward the
accused to the Children's court for receiving sentence in
accordance with the provisions of the Act. [594 E]
2. There is no legal requirement under s. 35 of the
Evidence Act that the public or other official book should
be kept only by a public officer; all that is necessary is
that the document should be maintained regularly by a person
whose duty it is to maintain the document. [588 G; 589 C]
Mohd. Ikram Hussain v. State of U.P., [1964] 5 S.C.R.
86, 100 & Abdul Majid v. Bhargavam, A.I.R. 1963 Ker. 18
referred to.
The Rajasthan Children Act being a piece of social
legislation is meant for the protection of infants who
commit criminal offences and, therefore, its provisions
should be liberally and meaningfully construed so as to
advance the object of the Act. The Children Act was enacted
to protect young children from the consequences of their
criminal acts on the footing that their mind at that age
could not be said to be mature for imputing mens rea as in
the case of an adult. [524 D; 593 H; 594 A]
In the instant case there are two documents of two
different schools showing the date of birth of the appellant
as June 22, 1957 and both these documents have been signed
by his father and were in existence ante litem motam. Hence,
there could be no ground to doubt the genuineness of these
documents. At the time when the age of the appellant was
first mentioned in the admission form, there was absolutely
no dispute about the date of birth and there could Dot have
been any motive on the part of the parents to give a false
date of birth because it was his first admission to a school
at a very early age. The school to which the appellant was
admitted enjoyed good reputation of authenticity.
585
there had been any element of suspicion, the admission
register and the scholar's register would have been
corrected by the headmistress of the school. [591 D; 590 D;
590 H]
M/s. Gannon Dunkerlay & Co. Ltd. v. Their Workmen,
[1972] 3 S.C.C. 443 referred to.
3. The appellant's father has given a cogent reason for
changing the date of birth and there is no reason for not
accepting his explanation particularly because the offence
was committed seven years after changing the date of birth.
[592 C]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
439 of 1976.
Appeal by special leave from the judgment and order
dated the 23rd April, 1976 of the Rajasthan High Court in
Criminal Revision No. 300 of 1974.
K.K. Venugopal, S.S. Khanduja, and G.C. Mishra for the
Appellant.
B.D. Sharma for the Respondent.
The Judgment of the Court was delivered by
FAZAL ALI, J. This appeal by special leave is directed
against a judgment dated June 29, 1974 of the Rajasthan High
Court overruling a preliminary objection taken by the
accused before the Sessions Judge to the effect that the
Sessions Judge, Tonk was not competent to try the case as
the accused Umesh Chandra was a child as contemplated by the
provisions of the Rajasthan Children Act, 1970 (hereinafter
referred to as the 'Act') on the date of the alleged
occurrence. This Act appears to have been passed by the
Rajasthan Legislature, but after receiving assent of the
President was enforced in various districts from time to
time. Under the provisions of the Act any person below the
age of 16 (sixteen) would be presumed to be a child and the
trial of a delinquent child was to be conducted in
accordance with the procedure laid down therein. The
objection taken by the appellant was that as he was below
the age of 16 at the time of the occurrence on 12.3.1973, he
could not be tried by the Additional Sessions Judge, Tonk or
the Additional Sessions Judge, Jaipur city, to whom the case
was transferred or 17.10.73
586
The Sessions Judge overruled the objection taken by the
accused and therefore he filed a revision to the Rajasthan
High Court against the order. The High Court after
considering the oral and documentary evidence came to the
conclusion that the Act was not applicable to the appellant
for two reasons-(1) that it was not brought into force in
Tonk at the time of the offence, and (2) that it was not
proved by the accused that he was below the age of 16 on
12.3.1973, the date of the occurrence. The accused was
charged for offences punishable under sections 364 and 302
of the Indian Penal Code. Aggrieved by the order of the High
Court, the appellant moved this Court in special leave and
at the time of granting special leave, this Court directed
the High Court to return a finding of fact on the actual
date of birth of the accused so that this Court may
determine the applicability of the Act to the facts of the
present case.
The High Court after reappraising the entire evidence-
oral and documentary-by its Order dated 18.11.76 came to a
clear finding that the age of Umesh Chandra at the time when
the offence was committed was 16 years 5 months and 20 days
and that the exact date of birth of the appellant was proved
to be 22.9.1956. After the finding of fact called for from
the High Court was sent to this Court, the appeal was placed
for hearing before us.
In support of the appeal, the learned counsel for the
appellant has assailed the finding of the High Court-that
the age of the appellant was above 16 years-and it was
contended that the High Court has based its decision on
wholly irrelevant material and has also committed errors of
law in appreciating important documentary evidence.
Another point that was argued before us was as to the
application of the Act to Tonk, where the offence was
committed. As, however, the Act has now been enforced in the
entire State, this question no longer survives because where
a situation contemplated by s. 26 of the Act arises, an
accused, who is found to be a child, has to be forwarded by
the Sessions Court to the Children's court which can pass
appropriate sentence. Where however proceedings against a
child are pending before Sessions Judge, s. 26 of the Act
enjoins a duty on the Court in which the proceeding in
respect of the child is pending on the date on which the Act
is extended to the area to act in the manner therein
prescribed. In this eventuality, the Court is under an
obligation to proceed With the trial and record
587
a finding as if the Act does not apply. But after concluding
the trial and recording a finding that the child had
committed an offence, the Court cannot pass any sentence but
the Court is under a statutory obligation to forward the
child to the Children's court which shall pass orders in
respect of that child in accordance with the provisions of
the Act, as if it has been satisfied on inquiry under the
Act that the child bas committed the offence. In view of
this provision, s. 21 would be attracted and the Children's
court will have to deal with the child under s. 21.
Thus, the main point for consideration in this case is
as to what is the exact date of birth of the appellant,
Umesh Chandra. The High Court appears to have brushed aside
the documentary evidence produced by the appellant mainly on
the ground that subsequent documents clearly proved that the
father of the accused had not correctly mentioned the date
of birth in the previous schools attended by him (accused)
and later corrected his date of birth by an affidavit which
was accepted by the High Court to be the correct date. The
High Court also rejected the oral evidence adduced by the
appellant as also the horoscope produced by his father.
We agree with the High Court that in cases like these,
ordinarily the 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. To
this extent, we agree with the approach made by the High
Court.
Coming now to the facts on the basis of which the
appellant sought protection to be tried only under the Act;
according to the testimony of the father of the appellant he
was. born on 22.6.57 and was aged 15 years 9 months on
12.3.1973-the date of the occurrence.
It is, however, not disputed that at the time when the
appellant was born, his father was posted in a small village
(Dausa) where the maternal grandfather of the appellant had
lived and perhaps he was not meticulous enough to report the
birth of his children. There is nothing to show the birth of
the appellant nor any evidence has been produced on this
aspect of the matter. There is also nothing to show that the
dates of birth of the other children of
588
Gopal (the father) were registered in any Municipal register
or in chowkidar's register. We have mentioned this fact
because the High Court seems to have laid special stress and
great emphasis on the non-production of any reliable record
to prove that the birth of the appellant had been entered
therein. It is common knowledge that in villages people are
not very vigilant in reporting either births or deaths and,
therefore, an omission of this type cannot be taken to be a
most damaging circumstance to demolish the case of the
appellant regarding his actual date of birth.
The first document wherein the age of the appellant was
clearly entered is Ext. D-1 which is the admission form
under which he was admitted to class III in St. Teressa's
Primary School, Ajmer. In the admission form, the date of
birth of the appellant has been show a as 22.6.1957. The
form is signed by Sister Stella who was the Headmistress.
The form also contains the seal of the school, DW, Ratilal
Mehta, who proved the admission form, has clearly stated
that the form was maintained in the ordinary course of
business and was signed only by the parents. The evidence of
Ratilal Mehta (DW 1) is corroborated by the evidence of
Sister Stella (DW 3) herself who has also endorsed the fact
of the date of birth having been mentioned in the admission
form and has also clearly stated on oath that the forms were
maintained in regular course and that they were signed by
her. She has also stated that at the time when the appellant
was first admitted she was the headmistress of St. Teressa
Primary School, Ajmer. The High Court seems to have rejected
this document by adopting a very peculiar process of
reasoning which apart from being unintelligible is also
legally erroneous. The High Court seems to think that the
admission forms as also the School's register (Ext. D-3)
both of which were, according to the evidence, maintained in
due course of business, were not admissible in evidence
because they were not kept or made by any public officer.
Under s. 35 of the Evidence Act, all that is necessary is
that the document should be maintained regularly by a person
whose duty it is to maintain the document and there is no
legal requirement that the document should be maintained by
a public officer only. The High Court seems to have confused
the provisions of sections 35, 73 and 74 of the Evidence Act
in interpreting the documents which were admissible not as
public documents or documents maintained by public servants
under sections 34, 73
589
or 74 but which were admissible under s. 35 of the Evidence
Act which may be extracted as follows:
"35. Relevancy of entry in public record made in
performance of duty
An entry in any public or other official book,
register or record, stating a fact in issue or relevant
fact, and made 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 books, register or record is
kept, is itself a relevant fact."
(Emphasis ours)
A perusal of the provisions of s. 35 would clearly
reveal that there is no legal requirement that the public or
other official book should be kept only by a public officer
but all that is required is that it should be regularly kept
in discharge of her official duty. This fact has been
clearly proved by two independent witnesses, viz., DW 1,
Ratilal Mehta and DW 3, Sister Stella. The question does not
present any difficulty or complexity as in our opinion the
section which would assist in this behalf is s. 35 of the
Evidence Act which provides for relevancy of entry in the
public record. In this connection we may refer to a decision
of this Court in Mohd. Ikram Hussain v. State of U.P., where
Hidayatullah, J. speaking for the Court, observed as under:
"In the present case Kaniz Fatima was stated to be
under the age of 18. There were two certified copies
from school register which show that on June 20, 1960,
she was under 17 years of age. There was also the
affidavit of the father (here evidence on oath) stating
the date of her birth and the statement of Kaniz Fatima
to the police with regard to her own age. These
amounted to evidence under the Indian Evidence Act and
the entries in the school registers were made ante
litem motam."
This topic has been elaborately dealt with particularly
in regard to the entries in School Register and the
admission forms in the case of-Abdul Majid v. Bhargavam. In
these circumstances,
590
the view of the High Court with regard to s. 35 is plainly
untenable and ss. 73 and 74 are utterly irrelevant.
Further, the High Court was of the view that as the
documents produced by the Teressa Primary School were kept
in loose sheets, no reliance can be placed on them. This
fact is admitted but the headmistress has explained that the
admission forms were bound much after the date of birth was
recorded and hence it cannot be presumed that the documents
were not kept in the regular course of business.
Moreover, the School where the documents were
maintained was an English public school and the record
maintained by it was undoubtedly unimpeachable and authentic
and could not be suspected or presumed to be tampered with.
At the time when the age of the appellant was first
mentioned in the admission form, there was absolutely no
dispute about the date of birth or for that matter the exact
date on which he was born and there could not have been any
motive on the part of the parents of the accused to give a
false date of birth because it was his first admission to a
school at a very early age. Further, the school to which the
appellant was admitted being a Public School enjoyed good
reputation of authenticity.
In M/s. Gannon Dunkerlay & Co. Ltd. v. Their Workmen
this Court made the following observations:
"In fact, if the register had been prepared at one
sitting for purposes of these cases, the Company would
have taken care that no suspicious circumstance comes
into existence and, if, by chance, any error was
committed, it could have' prepared another register in
lieu of Ext. C-1. The fact that this was not done shows
that this register is the register kept in the course
of business and, hence, there is no reason to doubt the
entries made in it."
These observations fully apply to the facts of the
present case because if there had been any element of
suspicion in giving the date of birth, the admission
register and the Scholar's register would have been
corrected by the headmistress of the school.
591
Exts. D-1 and D-2, mentioned above, are corroborated by
subsequent documentary evidence. It appears that an 1.7.65,
the boy was admitted to 3rd standard (equivalent to 5th
class) in St. Paul's school, Jaipur after the appellant's
father was transferred from Ajmer to Jaipur. Here also the
document shows that the date of birth given was the same,
namely, 22.6.1957.
Thus, consistently on two occasions, starting from 1963
and ending in 1965, the date of birth was mentioned in the
relevant documents as 22.6.1957. This Court in Mohd. Ikram
Hussain v. State of U.P. & Ors. (Supra) has held that copies
of school certificates or the affidavit of the father
constitute good proof of age, vide observations extracted
herein-before.
In the instant case also there are two documents of two
different schools showing the age of the accused-appellant
as 22.6.57 and both these documents have been signed by his
father and were in existence ante litem motam. Hence, there
could be no ground to doubt the genuineness of these
documents and the High Court committed a serious error of
law in brushing aside these important documents.
Another circumstance which weighed with the High Court
was that when the boy was admitted in St. Paul's school, no
transfer certificate appears to have been taken. This by
itself is not sufficient to dislodge the case of the
appellant unless a transfer certificate was taken and it had
shown that the date of birth given there did not tally with
the documents (Exts. D-1 to D-4).
It appears that as the father of the appellant was
subsequently transferred from Jaipur sometime in June 1966
to Dhausa and he was admitted to the Sanskrit Pathshala in
Dhausa, for the first time in this school the date of birth
of the appellant was changed from 22.6.57 to 22.9.56. The
explanation given by his father is that as by this time the
boy had become almost 10 years of age and as clause 10 of
Chapter XVIII of the Rajasthan Board of Secondary Education
Regulations required that no candidate could take the Higher
Secondary Examination until he had attained the age of 15
years on the 1st of October of the year in which the
Examination was held, he had to give an affidavit to change
this fact in order to enable his son (appellant) to appear
in the Higher Secondary Examination. This position was not
disputed by the State. The High Court seems to have made
much of this lacuna and has gone
592
to the extent of labelling Gopal Sharma, appellant's father,
as a liar having gone to the extent of making a false
affidavit. Here also, we think the High Court has taken a
most artificial and technical view of the matter. In our
country, it is not uncommon for parents sometimes to change
the age of their children in order to get some material
benefit either for appearing in examination or for entering
a particular service which would be denied to a child as
under the original date of birth he would be either under-
aged or ineligible.
Thus, the appellant's father has given a cogent reason
for changing the date of birth and there is no reason not to
accept his explanation particularly because the offence was
committed seven years after changing the date of birth, and,
therefore, there could be no other reason why Gopal Sharma
should have gone to the extent of filing an affidavit to
change the date, except for the reason that he has given.
It was also argued that in the insurance policy, the
appellant's mother had shown his age as 10 years without
giving the exact date of birth. The age of the appellant was
given as a rough estimate in the insurance policy but as the
policy was not in the name of the appellant, nothing turns
upon this fact particularly because by and large giving
allowance for a few months this way or that way the boy was
about 10 years old when the policy was taken. The High
Court, therefore, was wrong in attaching too great an
importance to this somewhat insignificant fact.
For these reasons we are satisfied that these
circumstances also do not put the case of the appellant out
of court.
These are the main reasons given by the High Court for
distrusting what, in our opinion, seems to be unimpeachable
documentary evidence produced by the appellant to show that
his exact date of birth was 22.6.57 and not 22.9.56 as
altered by his father later.
Another question argued at the Bar was as to what is
the material date which is to be seen for the purpose of
application of the Act. In view of our finding that at the
time of the occurrence the appellant was undoubtedly a child
within the provisions of the Act, the further question if he
could be tried as a child if he had become more than 16
years by the time the case went up to the
593
court, does not survive because the Act itself takes care of
such a contingency. In this connection sections 3 and 26 of
the Act may be extracted thus:
"3. Continuation of inquiry in respect of child
who has ceased to be child.
Where an inquiry has been initiated against a
child and during the course of such inquiry the child
ceases to be such, then, notwithstanding anything
contained in this Act or in any other law for the time
being in force, the inquiry may be continued and orders
may be made in respect of such person as if such person
had continued to be a child.
xx xx xx
26. Special provision in respect of pending cases.
Notwithstanding anything contained in this Act,
all proceedings in respect of a child pending in any
court in any area on the date on which this Act comes
into force in that area, shall be continued in that
court as if this Act had not been passed and if the
court finds that the child has committed an offence, it
shall record such finding and, instead of passing any
sentence in respect of the child, forward the child to
the children's court which shall pass orders in respect
of that child in accordance with the provision of this
Act as if it has been satisfied on inquiry under this
Act that the child has committed the offence."
A combined reading of these two sections would clearly
show that the statute takes care of contingencies where
proceedings in respect of a child were pending in any court
in any area on the date on which the Act came into force.
Section 26 in terms lays down that the court should proceed
with the case but after having found that the child has
committed the offence it is debarred from passing any
sentence but would forward the child to the children's court
for passing orders in accordance with the Act.
As regards the general applicability of the Act, we are
clearly of the view that the relevant date for the
applicability of the Act is the date on which the offence
takes place. Children Act was enacted to protect young
children from the consequences of their
594
criminal acts on the footing that their mind at that age
could not be said to be mature for imputing mens rea as in
the case of an adult. This being the intendment of the Act,
a clear finding has to be recorded that the relevant date
for applicability of the Act is the date on which the
offence takes place. It is quite possible that by the time
the case comes up for trial, growing in age being an
involuntary factor, the child may have ceased to be a child.
Therefore, ss. 3 and 26 became necessary. Both the sections
clearly point in the direction of the relevant date for the
applicability of the Act as the date of occurrence. We are
clearly of the view that the relevant date for applicability
of the Act so far as age of the accused, who claims to be a
child, is concerned, is the date of the occurrence and not
the date of the trial.
The High Court has failed to take notice that the Act
being a piece of social legislation is meant for the
protection of infants who commit criminal offences and,
therefore, its provisions should be liberally and
meaningfully construed so as to advance the object of the
Act. Bearing this in mind we have construed the documents in
the instant case.
We, therefore, allow the appeal to the extent that
while setting aside the judgment of the Sessions Judge, as
affirmed by the High Court, we direct the Additional
Sessions Judge, Jaipur, to try the accused and if he gives a
finding that the accused is guilty, he shall forward the
accused to the Children's court for receiving sentence in
accordance with the provisions of s. 26 of the Act.
H.L.C. Appeal allowed.
595
UMESH CHANDRA
Vs.
RESPONDENT:
STATE OF RAJASTHAN
DATE OF JUDGMENT02/04/1982
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
DESAI, D.A.
VARADARAJAN, A. (J)
CITATION:
1982 AIR 1057 1982 SCR (3) 583
1982 SCC (2) 202 1982 SCALE (1)335
CITATOR INFO :
RF 1987 SC1501 (2,9)
RF 1991 SC1494 (7)
ACT:
Rajasthan Children Act,, 1970-Material date for
determining age of delinquent-Is it date of commission of
offence or date of trial ?
Indian Evidence Act 1872-S. 35-Relevance of entry in
school record for proof of age-Should the record be kept by
public officer ?
HEADNOTE:
The Rajasthan Children Act, 1970, provides that any
person below the age of 16 years should be presumed to be a
child and that a delinquent child should be tried by a
Children's court in accordance with the procedure laid down
therein.
The appellant was charged under ss. 364 and 302,
I.P.C., in connection with an occurrence that took place in
Tonk district on March 12, 1973. A preliminary objection
that the Sessions Judge was not competent to try the case of
The appellant as he was a child under the provisions of the
Children Act was overruled by the trial court.
The revision filed by the appellant against the
decision of the trial court was dismissed by the High Court
which held that the Children Act was not applicable to the
appellant as that Act had not been enforced in Tonk district
on the date of the occurrence. The High Court further held
that the appellant had failed to prove that he was below the
age of 16 years.
On being directed by this Court to ascertain the actual
date of birth, the High Court held that the date of birth of
the appellant was September 22, 1956; and, therefore, he was
over 16 years on the date of the occurrence. The High Court
rejected the documents produced from the first two schools
attended by the appellant which showed his date of birth to
be June 22, 1957, for the reason that those documents had
not been kept or made by a public officer; it relied on an
affidavit furnished by the father of tho appellant while
admitting him to the third school in which the date of birth
had been changed to September 22, 1956. The explanation of
the appellant's father that the date of birth had been
changed to fulfil the requirement of age under the Rajasthan
Board of Secondary Regulations to enable the appellant to
appear in the Higher Secondary Examination at the
appropriate time was not accepted.
Allowing the appeal,
584
^
HELD: 1. (a) The relevant date for applicability of the
Rajasthan Children Act, 1970 so far as the age of the
accused, who claims to be a child, is concerned, is the date
of the occurrence and not the date of the trial as is clear
from the provisions of ss. 3 and 26 of the Act. [594 C]
(b) At the time of the occurrence, the appellant was
undoubtedly a child within the provisions of the Act. [592
H]
(c) The question whether the appellant could be tried
as a child if he had become more than 16 years by the time
the case went up to the court, does not survive as the Act
has now been enforced in the entire State. A combined
reading of ss. 3 and 26 clearly shows that the statute takes
care of contingencies where proceedings in respect of a
child were pending in any court on the date on which the Act
came into force. Section 26 in terms lays down that the
court should proceed with the case but after having found
that the child has committed the offence it is debarred from
passing any sentence but is obliged to forward the child to
the Children's court for passing orders in accordance with
the Act. [592 H; 593 A; 593 F-G]
(d) The judgment of the Sessions Judge as affirmed by
the High Court be set aside and the Additional Sessions
Judge, Jaipur, be directed to try the accused and if he gave
a finding that the accused was guilty, he shall forward the
accused to the Children's court for receiving sentence in
accordance with the provisions of the Act. [594 E]
2. There is no legal requirement under s. 35 of the
Evidence Act that the public or other official book should
be kept only by a public officer; all that is necessary is
that the document should be maintained regularly by a person
whose duty it is to maintain the document. [588 G; 589 C]
Mohd. Ikram Hussain v. State of U.P., [1964] 5 S.C.R.
86, 100 & Abdul Majid v. Bhargavam, A.I.R. 1963 Ker. 18
referred to.
The Rajasthan Children Act being a piece of social
legislation is meant for the protection of infants who
commit criminal offences and, therefore, its provisions
should be liberally and meaningfully construed so as to
advance the object of the Act. The Children Act was enacted
to protect young children from the consequences of their
criminal acts on the footing that their mind at that age
could not be said to be mature for imputing mens rea as in
the case of an adult. [524 D; 593 H; 594 A]
In the instant case there are two documents of two
different schools showing the date of birth of the appellant
as June 22, 1957 and both these documents have been signed
by his father and were in existence ante litem motam. Hence,
there could be no ground to doubt the genuineness of these
documents. At the time when the age of the appellant was
first mentioned in the admission form, there was absolutely
no dispute about the date of birth and there could Dot have
been any motive on the part of the parents to give a false
date of birth because it was his first admission to a school
at a very early age. The school to which the appellant was
admitted enjoyed good reputation of authenticity.
585
there had been any element of suspicion, the admission
register and the scholar's register would have been
corrected by the headmistress of the school. [591 D; 590 D;
590 H]
M/s. Gannon Dunkerlay & Co. Ltd. v. Their Workmen,
[1972] 3 S.C.C. 443 referred to.
3. The appellant's father has given a cogent reason for
changing the date of birth and there is no reason for not
accepting his explanation particularly because the offence
was committed seven years after changing the date of birth.
[592 C]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
439 of 1976.
Appeal by special leave from the judgment and order
dated the 23rd April, 1976 of the Rajasthan High Court in
Criminal Revision No. 300 of 1974.
K.K. Venugopal, S.S. Khanduja, and G.C. Mishra for the
Appellant.
B.D. Sharma for the Respondent.
The Judgment of the Court was delivered by
FAZAL ALI, J. This appeal by special leave is directed
against a judgment dated June 29, 1974 of the Rajasthan High
Court overruling a preliminary objection taken by the
accused before the Sessions Judge to the effect that the
Sessions Judge, Tonk was not competent to try the case as
the accused Umesh Chandra was a child as contemplated by the
provisions of the Rajasthan Children Act, 1970 (hereinafter
referred to as the 'Act') on the date of the alleged
occurrence. This Act appears to have been passed by the
Rajasthan Legislature, but after receiving assent of the
President was enforced in various districts from time to
time. Under the provisions of the Act any person below the
age of 16 (sixteen) would be presumed to be a child and the
trial of a delinquent child was to be conducted in
accordance with the procedure laid down therein. The
objection taken by the appellant was that as he was below
the age of 16 at the time of the occurrence on 12.3.1973, he
could not be tried by the Additional Sessions Judge, Tonk or
the Additional Sessions Judge, Jaipur city, to whom the case
was transferred or 17.10.73
586
The Sessions Judge overruled the objection taken by the
accused and therefore he filed a revision to the Rajasthan
High Court against the order. The High Court after
considering the oral and documentary evidence came to the
conclusion that the Act was not applicable to the appellant
for two reasons-(1) that it was not brought into force in
Tonk at the time of the offence, and (2) that it was not
proved by the accused that he was below the age of 16 on
12.3.1973, the date of the occurrence. The accused was
charged for offences punishable under sections 364 and 302
of the Indian Penal Code. Aggrieved by the order of the High
Court, the appellant moved this Court in special leave and
at the time of granting special leave, this Court directed
the High Court to return a finding of fact on the actual
date of birth of the accused so that this Court may
determine the applicability of the Act to the facts of the
present case.
The High Court after reappraising the entire evidence-
oral and documentary-by its Order dated 18.11.76 came to a
clear finding that the age of Umesh Chandra at the time when
the offence was committed was 16 years 5 months and 20 days
and that the exact date of birth of the appellant was proved
to be 22.9.1956. After the finding of fact called for from
the High Court was sent to this Court, the appeal was placed
for hearing before us.
In support of the appeal, the learned counsel for the
appellant has assailed the finding of the High Court-that
the age of the appellant was above 16 years-and it was
contended that the High Court has based its decision on
wholly irrelevant material and has also committed errors of
law in appreciating important documentary evidence.
Another point that was argued before us was as to the
application of the Act to Tonk, where the offence was
committed. As, however, the Act has now been enforced in the
entire State, this question no longer survives because where
a situation contemplated by s. 26 of the Act arises, an
accused, who is found to be a child, has to be forwarded by
the Sessions Court to the Children's court which can pass
appropriate sentence. Where however proceedings against a
child are pending before Sessions Judge, s. 26 of the Act
enjoins a duty on the Court in which the proceeding in
respect of the child is pending on the date on which the Act
is extended to the area to act in the manner therein
prescribed. In this eventuality, the Court is under an
obligation to proceed With the trial and record
587
a finding as if the Act does not apply. But after concluding
the trial and recording a finding that the child had
committed an offence, the Court cannot pass any sentence but
the Court is under a statutory obligation to forward the
child to the Children's court which shall pass orders in
respect of that child in accordance with the provisions of
the Act, as if it has been satisfied on inquiry under the
Act that the child bas committed the offence. In view of
this provision, s. 21 would be attracted and the Children's
court will have to deal with the child under s. 21.
Thus, the main point for consideration in this case is
as to what is the exact date of birth of the appellant,
Umesh Chandra. The High Court appears to have brushed aside
the documentary evidence produced by the appellant mainly on
the ground that subsequent documents clearly proved that the
father of the accused had not correctly mentioned the date
of birth in the previous schools attended by him (accused)
and later corrected his date of birth by an affidavit which
was accepted by the High Court to be the correct date. The
High Court also rejected the oral evidence adduced by the
appellant as also the horoscope produced by his father.
We agree with the High Court that in cases like these,
ordinarily the 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. To
this extent, we agree with the approach made by the High
Court.
Coming now to the facts on the basis of which the
appellant sought protection to be tried only under the Act;
according to the testimony of the father of the appellant he
was. born on 22.6.57 and was aged 15 years 9 months on
12.3.1973-the date of the occurrence.
It is, however, not disputed that at the time when the
appellant was born, his father was posted in a small village
(Dausa) where the maternal grandfather of the appellant had
lived and perhaps he was not meticulous enough to report the
birth of his children. There is nothing to show the birth of
the appellant nor any evidence has been produced on this
aspect of the matter. There is also nothing to show that the
dates of birth of the other children of
588
Gopal (the father) were registered in any Municipal register
or in chowkidar's register. We have mentioned this fact
because the High Court seems to have laid special stress and
great emphasis on the non-production of any reliable record
to prove that the birth of the appellant had been entered
therein. It is common knowledge that in villages people are
not very vigilant in reporting either births or deaths and,
therefore, an omission of this type cannot be taken to be a
most damaging circumstance to demolish the case of the
appellant regarding his actual date of birth.
The first document wherein the age of the appellant was
clearly entered is Ext. D-1 which is the admission form
under which he was admitted to class III in St. Teressa's
Primary School, Ajmer. In the admission form, the date of
birth of the appellant has been show a as 22.6.1957. The
form is signed by Sister Stella who was the Headmistress.
The form also contains the seal of the school, DW, Ratilal
Mehta, who proved the admission form, has clearly stated
that the form was maintained in the ordinary course of
business and was signed only by the parents. The evidence of
Ratilal Mehta (DW 1) is corroborated by the evidence of
Sister Stella (DW 3) herself who has also endorsed the fact
of the date of birth having been mentioned in the admission
form and has also clearly stated on oath that the forms were
maintained in regular course and that they were signed by
her. She has also stated that at the time when the appellant
was first admitted she was the headmistress of St. Teressa
Primary School, Ajmer. The High Court seems to have rejected
this document by adopting a very peculiar process of
reasoning which apart from being unintelligible is also
legally erroneous. The High Court seems to think that the
admission forms as also the School's register (Ext. D-3)
both of which were, according to the evidence, maintained in
due course of business, were not admissible in evidence
because they were not kept or made by any public officer.
Under s. 35 of the Evidence Act, all that is necessary is
that the document should be maintained regularly by a person
whose duty it is to maintain the document and there is no
legal requirement that the document should be maintained by
a public officer only. The High Court seems to have confused
the provisions of sections 35, 73 and 74 of the Evidence Act
in interpreting the documents which were admissible not as
public documents or documents maintained by public servants
under sections 34, 73
589
or 74 but which were admissible under s. 35 of the Evidence
Act which may be extracted as follows:
"35. Relevancy of entry in public record made in
performance of duty
An entry in any public or other official book,
register or record, stating a fact in issue or relevant
fact, and made 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 books, register or record is
kept, is itself a relevant fact."
(Emphasis ours)
A perusal of the provisions of s. 35 would clearly
reveal that there is no legal requirement that the public or
other official book should be kept only by a public officer
but all that is required is that it should be regularly kept
in discharge of her official duty. This fact has been
clearly proved by two independent witnesses, viz., DW 1,
Ratilal Mehta and DW 3, Sister Stella. The question does not
present any difficulty or complexity as in our opinion the
section which would assist in this behalf is s. 35 of the
Evidence Act which provides for relevancy of entry in the
public record. In this connection we may refer to a decision
of this Court in Mohd. Ikram Hussain v. State of U.P., where
Hidayatullah, J. speaking for the Court, observed as under:
"In the present case Kaniz Fatima was stated to be
under the age of 18. There were two certified copies
from school register which show that on June 20, 1960,
she was under 17 years of age. There was also the
affidavit of the father (here evidence on oath) stating
the date of her birth and the statement of Kaniz Fatima
to the police with regard to her own age. These
amounted to evidence under the Indian Evidence Act and
the entries in the school registers were made ante
litem motam."
This topic has been elaborately dealt with particularly
in regard to the entries in School Register and the
admission forms in the case of-Abdul Majid v. Bhargavam. In
these circumstances,
590
the view of the High Court with regard to s. 35 is plainly
untenable and ss. 73 and 74 are utterly irrelevant.
Further, the High Court was of the view that as the
documents produced by the Teressa Primary School were kept
in loose sheets, no reliance can be placed on them. This
fact is admitted but the headmistress has explained that the
admission forms were bound much after the date of birth was
recorded and hence it cannot be presumed that the documents
were not kept in the regular course of business.
Moreover, the School where the documents were
maintained was an English public school and the record
maintained by it was undoubtedly unimpeachable and authentic
and could not be suspected or presumed to be tampered with.
At the time when the age of the appellant was first
mentioned in the admission form, there was absolutely no
dispute about the date of birth or for that matter the exact
date on which he was born and there could not have been any
motive on the part of the parents of the accused to give a
false date of birth because it was his first admission to a
school at a very early age. Further, the school to which the
appellant was admitted being a Public School enjoyed good
reputation of authenticity.
In M/s. Gannon Dunkerlay & Co. Ltd. v. Their Workmen
this Court made the following observations:
"In fact, if the register had been prepared at one
sitting for purposes of these cases, the Company would
have taken care that no suspicious circumstance comes
into existence and, if, by chance, any error was
committed, it could have' prepared another register in
lieu of Ext. C-1. The fact that this was not done shows
that this register is the register kept in the course
of business and, hence, there is no reason to doubt the
entries made in it."
These observations fully apply to the facts of the
present case because if there had been any element of
suspicion in giving the date of birth, the admission
register and the Scholar's register would have been
corrected by the headmistress of the school.
591
Exts. D-1 and D-2, mentioned above, are corroborated by
subsequent documentary evidence. It appears that an 1.7.65,
the boy was admitted to 3rd standard (equivalent to 5th
class) in St. Paul's school, Jaipur after the appellant's
father was transferred from Ajmer to Jaipur. Here also the
document shows that the date of birth given was the same,
namely, 22.6.1957.
Thus, consistently on two occasions, starting from 1963
and ending in 1965, the date of birth was mentioned in the
relevant documents as 22.6.1957. This Court in Mohd. Ikram
Hussain v. State of U.P. & Ors. (Supra) has held that copies
of school certificates or the affidavit of the father
constitute good proof of age, vide observations extracted
herein-before.
In the instant case also there are two documents of two
different schools showing the age of the accused-appellant
as 22.6.57 and both these documents have been signed by his
father and were in existence ante litem motam. Hence, there
could be no ground to doubt the genuineness of these
documents and the High Court committed a serious error of
law in brushing aside these important documents.
Another circumstance which weighed with the High Court
was that when the boy was admitted in St. Paul's school, no
transfer certificate appears to have been taken. This by
itself is not sufficient to dislodge the case of the
appellant unless a transfer certificate was taken and it had
shown that the date of birth given there did not tally with
the documents (Exts. D-1 to D-4).
It appears that as the father of the appellant was
subsequently transferred from Jaipur sometime in June 1966
to Dhausa and he was admitted to the Sanskrit Pathshala in
Dhausa, for the first time in this school the date of birth
of the appellant was changed from 22.6.57 to 22.9.56. The
explanation given by his father is that as by this time the
boy had become almost 10 years of age and as clause 10 of
Chapter XVIII of the Rajasthan Board of Secondary Education
Regulations required that no candidate could take the Higher
Secondary Examination until he had attained the age of 15
years on the 1st of October of the year in which the
Examination was held, he had to give an affidavit to change
this fact in order to enable his son (appellant) to appear
in the Higher Secondary Examination. This position was not
disputed by the State. The High Court seems to have made
much of this lacuna and has gone
592
to the extent of labelling Gopal Sharma, appellant's father,
as a liar having gone to the extent of making a false
affidavit. Here also, we think the High Court has taken a
most artificial and technical view of the matter. In our
country, it is not uncommon for parents sometimes to change
the age of their children in order to get some material
benefit either for appearing in examination or for entering
a particular service which would be denied to a child as
under the original date of birth he would be either under-
aged or ineligible.
Thus, the appellant's father has given a cogent reason
for changing the date of birth and there is no reason not to
accept his explanation particularly because the offence was
committed seven years after changing the date of birth, and,
therefore, there could be no other reason why Gopal Sharma
should have gone to the extent of filing an affidavit to
change the date, except for the reason that he has given.
It was also argued that in the insurance policy, the
appellant's mother had shown his age as 10 years without
giving the exact date of birth. The age of the appellant was
given as a rough estimate in the insurance policy but as the
policy was not in the name of the appellant, nothing turns
upon this fact particularly because by and large giving
allowance for a few months this way or that way the boy was
about 10 years old when the policy was taken. The High
Court, therefore, was wrong in attaching too great an
importance to this somewhat insignificant fact.
For these reasons we are satisfied that these
circumstances also do not put the case of the appellant out
of court.
These are the main reasons given by the High Court for
distrusting what, in our opinion, seems to be unimpeachable
documentary evidence produced by the appellant to show that
his exact date of birth was 22.6.57 and not 22.9.56 as
altered by his father later.
Another question argued at the Bar was as to what is
the material date which is to be seen for the purpose of
application of the Act. In view of our finding that at the
time of the occurrence the appellant was undoubtedly a child
within the provisions of the Act, the further question if he
could be tried as a child if he had become more than 16
years by the time the case went up to the
593
court, does not survive because the Act itself takes care of
such a contingency. In this connection sections 3 and 26 of
the Act may be extracted thus:
"3. Continuation of inquiry in respect of child
who has ceased to be child.
Where an inquiry has been initiated against a
child and during the course of such inquiry the child
ceases to be such, then, notwithstanding anything
contained in this Act or in any other law for the time
being in force, the inquiry may be continued and orders
may be made in respect of such person as if such person
had continued to be a child.
xx xx xx
26. Special provision in respect of pending cases.
Notwithstanding anything contained in this Act,
all proceedings in respect of a child pending in any
court in any area on the date on which this Act comes
into force in that area, shall be continued in that
court as if this Act had not been passed and if the
court finds that the child has committed an offence, it
shall record such finding and, instead of passing any
sentence in respect of the child, forward the child to
the children's court which shall pass orders in respect
of that child in accordance with the provision of this
Act as if it has been satisfied on inquiry under this
Act that the child has committed the offence."
A combined reading of these two sections would clearly
show that the statute takes care of contingencies where
proceedings in respect of a child were pending in any court
in any area on the date on which the Act came into force.
Section 26 in terms lays down that the court should proceed
with the case but after having found that the child has
committed the offence it is debarred from passing any
sentence but would forward the child to the children's court
for passing orders in accordance with the Act.
As regards the general applicability of the Act, we are
clearly of the view that the relevant date for the
applicability of the Act is the date on which the offence
takes place. Children Act was enacted to protect young
children from the consequences of their
594
criminal acts on the footing that their mind at that age
could not be said to be mature for imputing mens rea as in
the case of an adult. This being the intendment of the Act,
a clear finding has to be recorded that the relevant date
for applicability of the Act is the date on which the
offence takes place. It is quite possible that by the time
the case comes up for trial, growing in age being an
involuntary factor, the child may have ceased to be a child.
Therefore, ss. 3 and 26 became necessary. Both the sections
clearly point in the direction of the relevant date for the
applicability of the Act as the date of occurrence. We are
clearly of the view that the relevant date for applicability
of the Act so far as age of the accused, who claims to be a
child, is concerned, is the date of the occurrence and not
the date of the trial.
The High Court has failed to take notice that the Act
being a piece of social legislation is meant for the
protection of infants who commit criminal offences and,
therefore, its provisions should be liberally and
meaningfully construed so as to advance the object of the
Act. Bearing this in mind we have construed the documents in
the instant case.
We, therefore, allow the appeal to the extent that
while setting aside the judgment of the Sessions Judge, as
affirmed by the High Court, we direct the Additional
Sessions Judge, Jaipur, to try the accused and if he gives a
finding that the accused is guilty, he shall forward the
accused to the Children's court for receiving sentence in
accordance with the provisions of s. 26 of the Act.
H.L.C. Appeal allowed.
595
