Harnarayan Gupta vs State of M.P.

S.K. Gangele, J.—Heard counsel. Corpus is also produced before this Court.

This habeas corpus writ petition has been filed by the father of the corpus namely Punam Gupta.

The petitioner pleaded that the corpus is minor and she has been abducted by respondent No. 4 Kapil Sharma. The corpus was produced before this Court on 27th May, 2013. She deposed that she could not live with her parents. At that time, since there was a dispute in regard to date of birth of the corpus, hence, she was sent to Nari Niketan and since then she has been in Nari Niketan. She remained present before this Court on many dates and is also present today. She has stated that she has married to respondent No. 4 Kapil Sharma as per Hindu rituals and she wants to live with him. She has further deposed that she does not want to live with the petitioner or her parents because the petitioner had beaten her. A case under sections 363 and 366 IPC has been registered at Crime No. 73/2013 at Police Station Dabra District against respondent No. 4 Kapil Sharma and he is in judicial custody.

Question for consideration before this Court is whether the corpus is a minor or major.

The petitioner has filed copy of Certificate issued by Zila Board Prathamik Praman Patra Examination, year 2005 (Annexure P/6) wherein the date of birth of the corpus has been mentioned as 06th July, 1996. The corpus deposed that her father did not tell the correct date of birth and she is aged about 19 years.

This Court directed ossification test of the corpus. The Medical Officer, District Hospital, Gwalior after X raying and performing ossification test submitted his report and mentioned the following findings:

Ossification centre at elbow joints has been fused. Distal end of ulna has been fused, but at iliac crest not fused. Hence, Radiological age is above seventeen years and below nineteen years.

The Radiologist found that on the basis of aforesaid findings, the age of corpus is above seventeen years and below nineteen years.

Question for consideration is whether the date of birth recorded in the school register be accepted or the age mentioned by the radiologist be accepted.

Constitutional Bench of the Hon''ble Supreme Court in Brij Mohan Singh Vs. Priya Brat Narain Sinha and Others, has held as under:

In actual life, it often happens that persons give false age of the boy at the time of his admission to school so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. The court of fact cannot ignore this fact while assessing the value of the entry and it would be improper for the court to base any conclusion on the basis of the entry, when it is alleged that the entry was made upon false information supplied with the above motive.

Thereafter, the Hon''ble Supreme Court has considered the aforesaid issue in its subsequent decisions also. Some of those judgments have been quoted by Division Bench of this Court in the case of Dilip Singh Gurjar Vs. State of MP and others (Writ Appeal No. 137 of 2013 decided on 03rd May, 2013 at Gwalior Bench). Division Bench of this Court in the aforesaid case held as under:

In the case of Madan Mohan Singh and Others Vs. Rajni Kant and Another, the Supreme Court has observed in para 16 as under:-

So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible u/s 35 of the Evidence Act but the Court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entry in School Register/School Leaving Certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases.

In the matter of Babloo Pasi Vs. State of Jharkhand and Another, commenting on the evidentiary value of the entry in the school register, it is held by the Apex Court that Section 35 of the Evidence Act lays down that an entry in any public or other official book, register or record, stating a fact in issue or relevant fact made by a public servant in the discharge of his official duty especially enjoined by the law of the country is itself a relevant fact. In para 28 it is observed that it is trite that to render a document admissible u/s 35, three conditions have to be satisfied, namely: (i) entry that is relied on must be one in a public or other official book, register or record; (ii) it must be an entry stating a fact in issue or a relevant fact, and (iii) it must be made by a public servant in discharge of his official duties, or in performance of his duty especially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible u/s 35 of the Evidence Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. (See Birad Mal Singhvi Vs. Anand Purohit,

In the matter of Jabar Singh Vs. Dinesh and Another, , it has been held in para 12 that 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, therefore, the entry was not relevant u/s 35 of the Evidence Act for the purpose of determining the age of Respondent No. 1.

Now we shall examine the evidentiary value of the date of birth recorded in school admission register/school leaving certificate in the light of above settled legal position. In the copy of the school admission register date of birth of Ku. Seema has been mentioned as 5-12 1995. In Annexure P/1 (school leaving certificate), it is mentioned that Ku. Seema was admitted in class 3rd on 11/11/2006. The school leaving certificate is said to have been issued on 13-10-2011. A bare perusal of the said certificate would show that the appellant was admitted on 11-11-2006 and her name was struck off from the roll of the institution on 25-06-2009. The said school leaving certificate was not issued in ordinary course of business of the school. There is nothing on record to show that the said date of birth was recorded in a register maintained by the school in terms of the requirements of law as contained in Section 35 of the Evidence Act. There is no evidence that at whose instance and on what material the date of birth was recorded in the School admission register. Therefore, the entry regarding date of birth mentioned in the school admission register and in the school leaving certificate loses its evidentiary value.

The learned counsel for the appellant placing reliance on Om Prakash Vs. State of Rajasthan and Another, , submitted that the opinion of the doctor regarding the age based on radiological examination and ossification test, be treated as strong evidence.

In the matter of Ram Deo Chauhan @ Raj Nath Vs. State of Assam, the Hon''ble Apex Court has added an insight for determination of this issue when it recorded as follows:-

Of course the doctor''s estimate of age is not a sturdy substitute for proof as it is only his opinion. But such opinion of an expert cannot be sidelined in the realm where the court gropes in the dark to find out what would possible have been the age of a citizen for the purpose of affording him a constitutional protection. In the absence of all other acceptable materials, if such opinion points to a reasonable possibility regarding the range of his age it has certainly to be considered.

The radiological report of Kapoorchand Memorial Digital X-ray Clinic shows that the age of Ku. Seema was 18 years. On the direction of this Court passed in the writ petition, the police had got examined Ku. Seema and in that report it has been opined that the age of Ku. Seema is above 18 years and below 19 years on 2.2.2013.

From the aforesaid judgments of Hon''ble Supreme Court, it is clear that the date of birth recorded in the school register could not be relied upon as a full proof method to determine the age. Since in the present petition, only photo copy of the certificate of Zila Board Prathamik Praman Patra Examination, year 2005 (Annexure P/6) has been filed by the petitioner there is no evidence as to on what basis the date of birth was recorded. Contrary to this, as per the report of the Radiologist which is based on medical examination and X ray report, the corpus is above seventeen years and below nineteen years of age. Opinion of Radiologist could also not be said to be conclusive proof of age as held by Hon''ble the Supreme Court in the case of Babloo Pasi Vs. State of Jharkhand and Another, but in the instant case, it is mentioned in the radiologist report that the age of corpus is above seventeen years and below nineteen years. Present is a habeas corpus petition and it involves valuable rights of a person of freedom of life. This is not a criminal proceeding or a criminal trial where the age of birth has an important bearing.

Looking to the aforesaid facts of the case, in my opinion, the corpus could not be treated as minor for the purpose of habeas corpus and her age could prima facie be held as above eighteen years.

In this view of the matter, the corpus is free to live on her own wishes. She deposed that she wants to go with her mother-in-law. She is at liberty to go with her mother-in-law.

However, it is hereby observed that in this order, I have prima facie considered the age of the corpus and it would not be binding on any criminal proceedings or proceedings before appropriate court of jurisdiction. The Court is at liberty to decide the case after taking evidence of parties in accordance with law.

With the aforesaid observation, this habeas corpus petition is disposed of. A typed copy to the learned Government counsel for compliance.