Pankaj Kumar Tripathi vs State of U.P.

S.K. Phaujdar J.

The present Petitioner had been an accused along with others for an offence u/s 302/120B, I.P.C. in Case Crime No. 431 of 1993 relating to police station Pipri, district Sonbhadra. He took up a plea before the C.J.M. that on the date of the alleged offence (18.9.93), he was aged less than 16 years as he was born on 25.6.78. It was his plea that being a juvenile on the date of alleged commission of the offence he was entitled to be tried before a Juvenile Court. This plea was rejected by the C.J.M., Sonbhadra. An application u/s 482, Cr. P.C. was then moved before this Court and the order of the C.J.M. on the point of determination of age was set aside and the Sessions Judge, Sonbhadra, was directed to make an enquiry into the assertions of the Petitioner that he was a juvenile on the relevant date.

The Sessions Judge allowed evidence to be adduced on behalf of the Petitioner. He also received the opinion of the doctor regarding the age of the Petitioner after his radiological examination and in the opinion of the Sessions Judge, founded on the basis of the evidence before him, the Petitioner was not a juvenile on the concerned date. This order of the Sessions Judge was challenged in the present criminal revision by Pankaj Kumar Tripathi and Hon''ble G. S. N. Tripathi, J., of this High Court, by his order dated 1.4.96, had set aside the order of the Sessions Judge dated 23.11.95. The Hon''ble Judge found that the Petitioner was a juvenile on the date of the alleged offence and, accordingly, he directed that his case was to be taken up by the Juvenile Court and his application for bail was also to be considered by the Juvenile Court.

This order of Hon''ble G. S. N. Tripathi, J., in this very revision application, was challenged before the Supreme Court in Criminal Appeal No. 1887 of 1996 by Deoki Nandan Dayma, the complainant of the case, and the order of the Supreme Court dated 1.11.96 was communicated to this Court and office note dated 9.5.97 was put up. In the meantime, there had also been an application on behalf of the complainant before this Court itself to recall the order dated 1.8.96. But that application became infructuous in view of the order of the Supreme Court dated 1.11.96 whereby the order of Hon''ble G. S. N. Tripathi, J., was set aside. The Supreme Court directed the High Court to rehear the matter and dispose of the revision petition of Pankaj Kumar Tripathi in accordance with law and the Supreme Court desired that the matter should be taken up as expeditiously as possible. The Supreme Court observed in its order that "From the order of the Sessions Judge, we find that the Respondent No. 2 examined, amongst others, his father to prove his age but the learned Judge did not find his evidence acceptable. Curiously enough, the High Court did not at all advert to this aspect of the matter. Coming now to the above quoted reason of the High Court for setting aside the impugned order, there cannot be any dispute with its observation that an entry in the school register as to the date of birth of a student is admissible in evidence but the High Court was required to decide, keeping in view the judgment of this Court in Dayachand Vs. Sahib Singh and another, , (on which reliance was placed by the Sessions Judge) whether the assessment of the Sessions Judge regarding its probative value in the instant case was proper or not.

It appears that in the enquiry concerning age, the Sessions Judge had allowed evidence to be led by the Petitioner. Three witnesses were examined and an affidavit of the mother of the Petitioner was filed. The High School certificate was also filed. The admission register of a Primary School, where the Petitioner was admitted in 1986, was brought on record through the present Headmaster of that school and a Kutumb register was also brought on record through an officer of the Panchayat. The medical opinion was on record based on radiological examination. At the initial stage, before the C.J.M., a certificate from the Maternity Home was produced. A horoscope, prepared by an Astrologer, after the birth of the Petitioner was also placed before the C.J.M. but these two papers were not placed, proved or tendered before the Sessions Judge.

It was contended by Sri K. R. Singh on behalf of the Petitioner that there was consistent oral evidence of the father corroborated by contemporaneous documentary evidence concerning the date of birth which stood confirmed by the High School certificate and the effect of this evidence could not be nullified by an opinion evidence of the doctor as that evidence could at best be an estimation and cannot replace or overweigh the direct evidence of the father. As regards Dayachand''s case, it was submitted that the documentary evidence in that case were conflicting and under that light, only the opinion evidence was preferred and the analogy may not be applied to the present set of facts. It was contended that it was impossible to think that a father would manipulate the date of birth of his son long before the present offence with a view to give a benefit to him.

In response to the submission made by the Petitioner, Sri G. S. Chaturvedi appearing for the Respondent submitted that as a revisional court, this Court could not interfere with a finding of fact if there was no perverse approach to the appreciation of the evidence. It was also contended that under the rules of evidence, when a plea was taken by the Petitioner concerning his age the burden of proof lay on him and he was to discharge this onus by acceptable and legal evidence. Sri Chaturvedi contended that the Headmaster who came forward to prove the recorded date of birth had in fact did not prove anything and, concerning the Kutumb register, the Petitioner''s witness No. 2 had given a gloomy picture of the state of affairs as to how shabbily an official record was maintained. On the statement of the father concerning age, it was contended that his evidence made it clear that for his first son there was definitely a suggestion of under-aging him and the father looses credibility on the point of age of his second son. It was contended that with this conflicting evidence the opinion of the doctor attains importance and the Sessions Judge had rightly opined that the Petitioner was not a juvenile on the date of the alleged offence.

The order of the Sessions Judge indicates that he had considered the affidavit of Sunita Devi and the statement of her age therein and he found a contradiction between that statement of her own age and the statement of age of Sunita Devi by her husband in the Court. It further appears that the Sessions Judge had considered the certificate from Khoshal Nursing Home (Maternity Home) and discarded it. The horoscope was also taken into consideration although it was not produced before the Sessions Judge. He had considered the decision of the Supreme Court in the case of Bhoop Ram Vs. State of U.P., , as also certain other cases together with that of Dayachand v. Sahib Singh and Anr.as decided by the Supreme Court. The Sessions Judge was not called upon to look to the affidavit of Sunita Devi as her affidavit on the main question of age of her son could not be deemed to be a formal matter and she should have been produced before the Court. The Sessions Judge should not have referred to the horoscope and the certificate from the Maternity Home as the same were not proved before him. However, this Court is to see, if, on the materials before it and on the basis of the case laws, the Sessions Judge had arrived at the right decision on the factum of age of the Petitioner.

In the case of Bhoop Ram, there was a plea that the accused was a child. In proof of age a school certificate was produced. The medical certificate was at variance with the school certificate. On facts there were no materials throwing a doubt on the entries in the school certificate and the Supreme Court observed that the said certificate could not be rejected on a surmise that it was not unusual for the parents to understate the age of their children at the time of school admission. It was observed that medical certificate was based on estimate and possibility of error could not be ruled out Bhoop Ram Vs. State of U.P., . In the case of Dayachand Vs. Sahib Singh and another, also there was a question of age of the accused at the time of the incident. The medical evidence suggested that he was not below 18 years. Two school certificates were produced which were in conflict with each other. On the basis of these matters there was a concurrent finding of the Courts below that the accused was above 16 years. The High Court was held not justified in interfering with the finding.

As regards the Kutumb register, it was contended with reference to a finding of the Supreme Court in the case of Harpal Singh and Another Vs. State of Himachal Pradesh, , that the entry in the Kutumb register was admissible u/s 35 of the Evidence Act. This view was proposed to be reinforced, relying on another decision of the Supreme Court in the case of Umesh Chandra Vs. State of Rajasthan, , where two documents of two different public schools showing the same age of the child were accepted as admissible.

The High School certificate no doubt bears the date of birth of the Petitioner as 25.6.78 but this age would normally be presumed to have been entered on the basis of entry in the date of birth in the school register and the latter mentioned documents would, therefore, be of more importance. The school certificate has come on record through A.W. 1, Sri Narendra Dhar. His examination indicates that Pankaj Kumar Tripathi was admitted in the school on 22.7.86 and he left the school on 30.4.87. In the admission register, his date of birth was shown as 25.6.78. He had produced the original register and had placed a photocopy thereof on record. At the relevant time, the Headmistress was Smt. Shanti Gaur, but the witness has stated that he did not know or identify the handwriting of Smt. Shanti Gaur. The witness had accepted that he could not say under what circumstances and on whose information the date of birth was recorded in the school register. A.W. 3 father of Pankaj Kumar Tripathi stated that he had admitted Pankaj in the school and he got the date of birth entered as 25.6.78. Thus we are back only to the statement of the father of Pankaj on the point of his date of birth and all others evidence, the entry register or the High School certificate are based on his statement only.

A.W. 2 is Sri S. Shukla, the Gram Panchayat Adhikari, had produced the Kutumb register. The entries therein have been produced by him. The name of Pankaj Kumar Tripathi finds place in the family of Sajan Ram in the concerned village and his year of birth was shown 1978. Cross-examination is there to show that certain pages in the register, including relevant pages, were stitched in a different manner than the other portion of the register. It could not be indicated, even during arguments, as to how the register is maintained. It had come in the evidence of A.W. 2 that the register was opened in 1972. If that be so, then persons born prior to 1972 should have been initially entered and any addition in the family should have been noted, according to the dates of addition. No evidence is there to show if any particular page is allotted to a particular family and blank lines are left for future addition or if the register is revised every year. Even if it is accepted that the entries were there, there should have been some remarks as to the entries made after 1972 and on whose information. In the absence of these materials, the mere fact that the register is admissible u/s 35 of the Evidence Act may not give a stamp of authenticity to it. Admissibility is one thing and acceptability of the evidence is certainly another.

We are to fall back on the statement of the father, and on him alone, concerning the age. His cross-examination indicates that he had another son, elder to Pankaj, whose name was Praveen. This Praveen, according to his statement, was born on 24.2.76 and the father claims that he passed out High School examination in 1988 itself. This suggests that he took the High School examination at a tender age of 12 years. This could happen with an extraordinarily meritorious boy. But the subsequent claim of the father is also worth note. Sri Sajan Ram Tripathi came out with a claim that his children started education at the age of three only and he entered them to school directly in Class III. If Praveen passed out High School examination in 1988 and if he entered the school in Class III then he must have been admitted in Class III at the tender age of three or four which sounds improbable. This improbability is reinforced as the father has stated that he could tell the age of his son at the time of entry to the school only after looking to the school register. It is true that there could not be a surmise that parents understate the age of their children while admitting them in school, but in the instant case, it is not a surmise. The evidence prima facie suggested that the elder brother of the Petitioner was admitted by his father in school in Class III at a tender age of three or four and it was a definite case of understating his age. If the father could do it for one son, it could be repeated for the second son as well and the father looses his credibility at least on the point of stating the date of birth of his son. We are then left with the medical opinion only which is from an unbiased disinterested scientific personnel who bases his opinion on scientific data only. In any view of the matter, it was for the Petitioner to prove that he was a juvenile at the relevant date and evidence on his behalf not being acceptable it may not be stated that he was aged less than 16 years on the date of the alleged offence.

Seen in this light, the findings of the Sessions Judge may not be interfered with. It must, therefore, be confirmed that the Petitioner was not a juvenile on the date of the alleged offence and he may not, therefore, get any benefit as a juvenile. The revision application stands dismissed. The record of S.T. No. 17 of 1994 be despatched to the court below immediately along with a copy of the instant order.