RAVINDER SINGH GORKHIversusSTATE OF U.P.

                            RA VINDER SINGH GORKHI                                    A
                                       v.
                                  STATE OF U.P.

                                    MAY 12, 2006

                      [S.B. SINHA AND P.P. NAOLEKAR, JJ.]                             B
           Evidence Act, 1872 :

            Section 35-Entry in public record-Relevancy of-Age of accused-
      School leaving certificate-Admissibility of-Accused said to have been born
      on 01-06-1963 was involved in a murder case which took place on                 c
      15.05. 19 79-Trial court convicted all accused persons-High Court confirmed
      the conviction-Before the trial court the accused made a statement under
      S. 313 that he was aged 16 years-However, the trial court assessed his age
      as 18 years-Before Supreme Court far the first time accused claimed that
      the was entitled to the benefit of S. 2(4) of the U.P. Children Act-Matter      D
      remitted to Sessions Judge for determination of the age of the accused-
      Relying upon the school leaving certificate the Sessions Judge held that he
      was a minor on the date of occurrence i.e. 15.05. 1979-Correctness a/-
.,.   Held : Determination of the date of birth of a person before a court of law
      whether in a civil proceeding or a criminal proceeding, would depend upon       E
      the facts and circumstances of each case-Section 35 would be attracted
      both in civil and criminal proceedings-Before a document is admissible in
      evidence the different conditions laid down in S. 35 must be fulfilled-It has
      not been shown whether any register was maintained in the school at all-
      Further the original register was not produced-In the instant case, the
      certificate was issued only for the purpose of the case-The accused never       F
      seriously projected that he was a minor on the date of occurrence-Report
      ofSessions Judge rejected-Conviction upheld-UP. Children Act, 195 I, S.
      2(4).

           The appellant-accused was said to have been born on 01.06.196:3.           G
      He was involved in a criminal case relating to a murder which took
      place on 15.05.1979. The allegation against the appellant was that he
      along with his father and others attacked the deceased with a country-
      made pistol and knife. The trial court convicted all the accused persons
      of commission of murder. The High Court confirmed the conviction.
                                                                                      H
                                           615
    616                 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A   Hence the appeal.
                                                                                ...

          During the trial, in his statement under, Section 313 of the Code
    of Criminal Procedure, 1973, the appellant stated that he was aged 16
    years whereas the court assessed his age to be 18 years. Before this
    Court for the first time, the appellant claimed that he was entitled to
B   the benefit of Section 2(4) of the Uttar Pradesh Children Act, 1951. The
    question in regard to the appellant's age was referred to the Sessions
    Judge. Relying upon the school leaving certificate wherein the date of
    birth of the appellant was recorded to be 01.06.1963, he was held to be
    a minor on the date of occurrence i.e. 15.05.1979. The school leaving
C   certificate was said to have been issued in the year 1998. A perusal of
    the said certificate would show that the appellant was said to have been
    admitted on 01.08.1967 and his name was struck off from the roll of the
    institution on 06.05.1972. The said school leaving certificate was not in
    the ordinary course of business of the school.
D
          The following question arose before the Court:-

         Whether a school leaving certificate purported to have been issued
    by the authorities of a primary school would attract the provision of
    Section 35 of the Evidence Act, 1872?
E
          Dismissing the appeal, the Court

          HELD : 1. There cannot be any doubt whatsoever that the
    certificate was issued for the purpose of the case. The father of the
F   appellant was also an accused. He was described as 'Surender Pal
    Singh'. The appellant had also been described as 'Ravinder Pal Singh
    S/o Surender Pal Singh'. Before this Court the father's name has been
    described as 'Surender Singh', the appellant's name has been shown as
    'Ravinder Singh Gorkhi'; whereas the name of the student in the
    leaving certificate has been shown as 'Ravinder Pal Singh'. (624-E, F)
G
         2. Determination of the date of birth of a person before a court
    of law whether in a civil proceeding or a criminal proceeding, would
    depend upon the facts and circumstances of each case. Such a date of
    birth has determined on the basis of the materials on record. It will be
H   a matter of appreciation of evidence adduced by the parties. Different
                        R. S. GORKHI v. STATE                          617

standards having regard to the provision of Section 35 of the Evidence         A
Act, 1872 cannot be applied in a civil case or a criminal case.
                                                    (624-G, H, 625-AJ

      3. Section 35 of the Evidence Act would be attracted both in civil
and criminal proceedings. The Evidence Act does not make any distinction
between a civil proceeding and a criminal proceeding. Unless specifically      B
provided for, in terms of Section 35 of the Eivdence Act, the register
maintained in ordinary course of business by a public servant in the
discharge of his official duty, or by any other person in performance
of a duty specially enjoined by the law of the country in which, inter
alia, such register is kept would be a relevant fact. Section 35, thus,        C
requires the following conditions to be fulfilled before a document is
held to be admissible thereunder : (i) it should be in the nature of the
entry in any public or official register; (ii) it must state a fact in issue
or relevant fact; (iii) entry must be made either by a public servant in
the discharge of his official duty, or by any person in performance of
a duty specially enjoined by the law of the country; and (iv) all persons      D
concerned indisputably must have an access thereto. (625-, B, C, DJ

     4.1. The determination of the age of the child should be made on
the basis of the date on which the occurrence took place and not when
he was produced before the court. (625-E)
                                                                               E
     Pratap Singh v. State of Jharkhand, (2005] 3 SCC 551, followed.

     4.2. Such determination is required to be made even if at the
relevant time, the juvenile crossed the age of eighteen years. In the
absence of any other statute operating in the field, Section 35 will have
application and the court, while determining such age would depend             F
upon the materials brought on record by the parties which would be
admissible in evidence in terms of Section 35 of the Act. (625-F, GJ

     4.3. It has not been shown whether any register was required to
be maintained under any statute. It has further not been shown as to
whether any register was maintained in the school at all. The original
                                                                               G
register has not been produced. The authenticity of the said register, if
produced, could have been looked into. No person had been
examined to prove as to who had made entries in the register. The school
leaving certificate which was not issued by a person, who was in the
school at the time when the appellant was admitted therein, cannot be          H
    618                 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A   relied upon. 1628-E-GI

         Birad Mal Sanghvi v. Anand Purohit, [19981 Supp. SCC 604; Sushi/
    Kumar v. Rakesh Kumar, 120031 8 SCC 673; Upedesh Kumar v. Prithvi
    Singh. 120011 2 SCC 524; Ramdeo Chauhan alias Raj Nath v. State of
    Assam. 120011 5 SCC 714; Bhola Bhagat v. State of Bihar, 119971 8 SCC
B   720 and Zakarius Lakra v. Union oflndia,1200513 SCC 161, referred to.

          Rupa Ashok Hurra v. Ashok Hurra, (2002( 4 SCC 388 and Raj Singh
    v. State of Haryana, (20001 6 SCC 759, held inapplicable.

C        5. In this case the Sessions Judge had discarded all other evidences
    which have been adduced on behalf of the appellant in support of his
    contention that he was a minor on the date commission of the offence.
    Entry of a date of birth in the school records is merely a piece of
    evidence. (629-AJ

D         Umesh Chandra v. State of Rajasthan, 1198212 SCC 202; Bhoop Ram
    v. State of U.P., (1989] 3 SCC 1 and Birad Mal Sanghvi v. Anand Purohit,
    I19981 Supp. SCC 604, referred to.

         6. The age of a person as recorded in the school register or
E   otherwise may be used for various purposes; namely, for obtaining
    admission; for obtaining an appointment; for contesting election;
    registration of marriage; obtaining a separate unit under the ceiling
    laws; and even for the purpose of litigating before a civil forum, e.g.
    necessity of being represented in a court of law by a guardian or where
F   a suit is filed on the ground that the plaintiff being a minor he was not
    appropriately represented therein or any transaction made on his behalf
    was void as he was a minor. A court of law for the purpose of
    determining the age of a party to the lis, having regard to the provisions
    of Section 35 of the Evidence Act will have to apply the same standard.
    No different standard can be applied in case of an accused as in a case
G   of abduction or rape, or similar offence where the victim or the
    prosecutrix although might have consented with the accused, if on the
    basis of the entries made in the register maintained by the school, a
    judgment of conviction is recorded, the accused would be deprived of
    his constitutional right under Article 21 of the Constitution, as in that
H   case the accused may unjustly be convicted. [629-D, E, F, GI
                       R. S. GORKH! v. STATE                         619

     7. Until the age of a person is required to be determined in a          A
manner laid down under a statute, a different standard of proof should
not be adopted. His no doubt true that the court must strike a balance.
in case of a dispute, the court may appreciate the evidence having
regard to the facts and circumstances of the case. It would be the duty
of the court of law to accord the benefit to a juvenile, provided he is
one. To give the same benefit to a person who in fact is not a juvenile      B
may cause injustice to the victim. In this case, the appellant had never
been serious in projecting his plea that he on the date of commission
of the offence was a minor. He made such a statement for the first time
while he was examined under Section 313 of the Code of Criminal
Procedure, 1973. (629-H, 630-A, B)                                           c
     8. The family background of the appellant is also a relevant fact.
His father was a 'Pradhan' of the village. He was found to be in
possession of an unlicensed firearm. He was all along represented by a
lawyer. The court estimated his age to be 18 years. He was tried jointly
with the other accused. He had been treated alike with the other             D
accused. On merit of the matter also the appellant stands on the same
footing as the other accused. The prosecution has proved its case. In fact
no such plea could be raised as the special leave petition of the persons
similarly situated was dismissed when the court issued notice having
regard to the contention raised by him for the first time that he was        E
a minor on the date of occurrence. (630-C, DJ

     9. Having regard to the peculiar facts and circumstances of this
case, the report of the Sessions Judge is not accepted. (630-El

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 362                F
of 1999.

     From the Final Judgment and Order dated 23.9.1997 of High Court of
Judicature at Allahabad in Crl. Appeal No. 336811979.

     P.S. Mishra, Manoj Swarup, Ms. Lalita Kohli, Ms. Mona Rajvanshi,        G
Anubhav Kumar and Mrs. Happy Sexena for M/s. Manoj Swarup & Co. for
the Appellant.

    R.K. Singh and Prashant Chaudhary for Mr. Praveen Swarup for the
Respondent.
                                                                             H
    620                  SUPREME COURT REPORTS (2006] SUPP. 2 S.C.R.

A         The Judgment of the Court was delivered by

          S.B. SINHA, J. :

          Whether a school leaving certificate purported to have been issued by
    the authorities 0f a primary school would attract the provision of Section 35
B   of the Indian Evidence Act, 1872 is in question in this appeal which arises
    out of a judgment and order dated 23.09.1997 passed by the High Court of
    Allahabad in Criminal Appeal No.3368 of whereby and whereunder the
    appeal preferred by the appellant from an order dated 29.11.1979 passed by
    the Additional Sessions Judge, Bulandshahr in Sessions Trial No. 293 of
    1979 was dismissed.
c
          The appellant herein was said to have been born on 01.06.1963. He was
    involved in a criminal case relating to the murder of one Chhattrapal which
    took place on 15.05.1979. The allegation against the appellant was that he
    along with his father Surendra, Satish Chandra, Narendra and Ramji Lal
D   attacked him with a country-made pistol and knife. The appellant is said to
    have been armed with a country-made pistol.

           The said deceased while traveling on a cycle was fired at, whereupon
    he threw his cycle on the road and rushed towards the shop of one Chhitariya
    and entered therein to save his life. The accused persons chased him, entered
E   into the said shop and killed him by firing from the country-made pistols
    and knife. At the trial all the accused persons were convicted of commission
    of the said offence and were sentenced to undergo rigorous imprisonment
    for life. An appeal preferred by the accused persons including the appellant
    herein was dismissed by the High Court by reason of the impugned
F   judgment.

          Before the trial judge in his statement under Section 313 of the Code
    of Criminal Procedure a purported statement was made by the appellant
    herein that he was aged 16 years whereas the court assessed his age to be
    18 years. He indisputably did not claim any benefit of the provisions of the
G   Uttar Pradesh Children Act, 1951 (for short, 'the Act'), which was applicable
    in the case.

          Before this Court for the first time, a contention was raised that as the
    appellant was a minor on the date of commission of the offence, he was
    entitled to the benefit thereof in terms of the provision of Section 2 (4) of
H
                    R. S. GORKHI v. STATE [SINHA, J.]                      621

 the Act. Whereas special leave petition filed by the other accused persons        A
 was dismissed, notice was directed to be issued in the special leave petition
 filed by the appellant herein. On the aforementioned question, parties
 exchanged their affidavits. A Division Bench of this Court by an order dated
 11.12.1998 thought it appropriate to refer the question in regard to his age
 to the Sessions Judge, Bulandshahr before whom the parties were directed
 to appear on 04.01.1999 to lead both oral and documentary evidences. The          B
 learned Sessions Judge was asked to return his findings to this Court.

        The learned Sessions Judge, Bulandshahr pursuant to or in furtherance
· of the said direction allowed the parties to adduce evidence. Relying upon
  or on the basis of the school leaving certificate wherein the date of birth of
  the appellant was recorded to be 01.06.1963, he was held to be a minor on
                                                                                   c
  the date of occurrence i.e. 15.05.1979. The appellant in his statement
  recorded on 26.09 .1979 disclosed his age to be 16 years; but the learned
  Sessions Judge opined that he appeared to be 18 years of age.

       The learned Sessions Judge, however, did not rely upon the other            D
 evidences produced on behalf of the appellant, namely, horoscope and
 extract of 'Parivar Register'. He further did not put any reliance on the
 testimony of the mother of the appellant.

      Mr. P.S. Mishra, the learned Senior Counsel appearing on behalf of the
 appellant, submitted that in view of the findings arrived at by the learned       E
 Sessions Judge, Bulandshahr, the appellant was entitled to the benefit of the
 provisions of the Act and in that view of the matter no sentence of life
 imprisonment could have been imposed upon him.

       The Uttar Pradesh Children Act, 1951 was enacted to provide for the
                                                                                   F
 custody, protection, treatment and rehabilitation of children and for the
 custody, trial, punishment of youthful offenders, and for the amendment of
 the Reformatory Schools Act. 1897 in its application to the State of Uttar
 Pradesh. Sub-section (4) of Section 2 defines a "child" to mean a person
 under the age of sixteen years. Section 63 of the Act, however, provides that
 where a child is charged with an offence together with any other person not       G
 being a child then notwithstanding anything contained in the said Act the
 child may be tried together with the adult in accordance with the provisions
 of the Code of Criminal Procedure and nothing in the said Act shall require
 the child to be tried by a Juvenile Court but the sentence, if any, awarded
 to the child shall be in accordance with the provisions of the Act.
                                                                                   H
    622                  SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A         Ordinarily a Juvenile Court was required to be established in terms of
    the provisions of the said Act as envisaged under Section 60 thereof. In this
    case, admittedly, apart from the appellant herein all other accused persons
    were adults. A joint trial was held in terms of the provisions of the Code
    of Criminal Procedure. At no point of time any exception thereto was taken
    by or on behalf of the appellant. Before us no contention has been raised
B   that the trial was illegal.

          The only question which has been raised and arises for consideration
    is as to whether having regard to the provision of Section 27 of the Act, the
    sentence awarded against the appellant herein was illegal.
c
          For the purpose of determining the aforementioned question, we may
    notice a few provisions of the said Act.

          Section 27 of the Act reads as under :
D
             "Sentence that may not be passed un child.- Notwithstanding
             anything to the contrary contained in any law, no Court shall
             sentence a child to death or transportation or imprisonment for any
             term or commit him to prison in default of payment of fine :

                  Provided that a child who is twelve years of age or upwards
             may be committed to prison when the Court certifies that he is of
             so unruly. or of so depraved a character that he is not fit to be sent
             to an approved school and that none of the other methods in which
             the case may legally be dealt with is suitable."
F
         Section 30 of the Act. however, empowers the Court to discharge
    youthful offender or to commit him to suitable custody. Section 31 provides
    for payment of fine by the parents of the child. Section 32 provides for
    detention in case of certain crimes by children, which reads as under :

G            "Detention in case of certain crimes by children.- (I) When a child
             is found to have committed an offence of so serious a nature that
             the Court is of opinion that no punishment which under the
             provisions of this Act it is authorized to inflict is sufficient. the
             Cou11 shall order the offender to be kept in safe custody in such
H            place or manner as it thinks fit and shall report the case for the
                   R. S. GORKHI v. STATE (SINHA, J.]                       623

         orders of the State Government.                                            A
              (2) Notwithstanding the provisions of Section 13 the State
         Government may order any such child to be detained in such place
         and on such conditions as it thinks fit, and while ~o detained the
         child shall be deemed to be in legal custody :
                                                                                    B
              Provided that no period of detention so ordered shall exceed
         the maximum period of imprisonment to which the child could have
         been sentenced for the offence committed."

      We have noticed hereinbefore that the learned Sessions Judge,
Bulandshahr in his report dated 17 .02.1999 did not rely upon any evidence          c
other than the school leaving certificate. He not only disbelieved the
statement of the mother of the appellant but also did not place any reliance
upon the other documentary evidences adduced on behalf of the appellant,
namely, the horoscope and the 'Parivar Register'. No exception having been
taken to by the parties we accept the said part of the report. We are, thus,        D
required only to consider as to whether the School Leaving Certificate is
reliable.

      The purported school leaving certificate was sought to be proved by
Chandra Pal Singh, Head Master of the Primary Pathshala, Hajratpur. In his
cross-examination, he categorically stated that the date of birth of the ·          E
appellant might have been disclosed by the appellant at the time of
admission. He did not have any personal knowledge with regard thereto. No
enquiry was made as regards the age of the appellant while he was admitted
in the institution. He accepted that it was quite possible that the age disclosed
by the guardian may be more or less.                                                F
      The school leaving certificate was said to have been issued in the year
1998. A bare perusal of the said. certificate would show that the appellant
was said to have been admitted ori 01.08.1967 and his name was struck off
from the roll of the institution on 06.05.1972. The said school leaving
certificate was not issued in ordinary course of business of the school. There      G
is nothing on record to show that the said date of birth 'l\'as recorded in a
register maintained by the school in terms of the requirements of law as
contained in Section 35 of the Indian Evidence Act. No statement has further
been made by the said Head Master that either of the parents of the appellant
who accompanied him to the school at the time of his admission therein made         H
    624                   SUPREME COURT REPORTS [2006) SUPP. 2 S.C.R.

A   any statement or submitted any proof in regard thereto. The entries made in
    the school leaving certificate, evidently had been prepared for the purpose
    of the case. All the necessary columns were filled up including the character
    of the appellant. It was not the case of the said Head Master that before he
    had made entries in the register, age was verified. If any register in regular
    course of business was maintained in the school; there was no reason as to
B   why the same had not been produced.

          In the counter affidavit filed on behalf of the State, it has categorically
    been stated that the appellant had been a history sheeter; as many as 34 cases
    for commission of heinous crimes have been filed against him, which
C   included cases under Sections 302, 392, 395 and 364 of the Indian Penal
    Code; a laro;e number of cases under the U.P. Goonda Act and Section 25
    and 27 of the Arms Act. One case was filed against him under Section 302
    as early as in 1973 and the last case which had been filed against him was
    in 1996 under Section 395/364-A of the Indian Penal Code. It is, therefore,
    unlikely that the appellant was not aware of his legal right.
D
          The school leaving certificate was not an original one. It was merely
    a second copy. Although it was said to have been issued in July 1972, the
    date of issuance of the said certificate has not been mentioned. The copy was
    said to have been signed by the Head Master on 30.04.1998. It was accepted
    before the leam.:d Additional Sessions Judge, Bulandshahr on 27.01.1999.
E   The Head Master has also not that the copy given by him was a true copy
    of the original certificate. He did not produce the admission register.

          There cannot, however, be any doubt whatsoever that the certificate
    was issued for the purpose of the case. The father of the appellant was also
F   an accused. He was described as 'Surender Pal Singh'. The appellant had
    also been described as 'Ravinder Pal Singh S/o Surender Pal Singh'. Before
    us, the father's name has been described as 'Surender Singh', the appellant's
    name has been shown as 'Ravinder Singh Gorkhi'; whereas the name of the
    student in the school leaving certificate has been shown as 'Ravinder Pal
    Singh'.
G
          Determination of the date of birth of a person before a court of law,
    whether in a civil proceeding or a criminal proceeding, would depend upon
    the facts and circumstances of each case. Such a date of birth has to be
    determined on the basis of the materials on records. It will be a matter of
H   appreciation of evidence adduced by the parties. Different standards having
                   R. S. GORKHI v. STATE [SINHA, J.]                       625

regard to the provision of Section 35 of the Evidence Act cannot be applied        A
in a civil case or a criminal case.

     Mr. Mishra, however, would urge that while in a civil dispute a strict
proof may be necessary, in a criminal case and particularly in the case of
a juvenile, the court may consider any evidence which may be brought on
records by the parties. We do not agree.                                           B
      Section 3 5 of the Evidence Act would be attracted both in civil and
criminal proceedings. The Evidence Act does not make any distinction
between a civil proceeding and a criminal proceeding. Unless specifically
provided for, in terms of Section 35 of the Evidence Act, the register
maintained in ordinary course of business by a public servant in the discharge
                                                                                   c
of his official duty, or by any other person in performance of a duty specially
enjoined by the law of the country in which, inter alia, such register, is kept
would be a relevant fact. Section 35, thus, requires the following conditions
to be fulfilled before a document is held to be admissible thereunder : (i)
it should be in the nature of the entry in any public or official register; (ii)   D
it must state a fact in issue or relevant fact; (iii) entry must be made either
by a public servant in the discharge of his official duty, or by any person
in performance of a duty specially enjoined by the law of the country; and
(iv) all persons concerned indisputably must have an access thereto.

      A question was raised as to whether the determination of the age of          E
a child should be made on the basis of the date on which the occurrence took
place or when, he was produced before the court. The said question came
up for consideration in the context of the provisions of the Juvenile Justice
Act, 2000 before a Constitution Bench in Pratap Singh v. State ofJharkhand
and Anr., [2005] 3 SCC 551. It was held that the date of commission of the         F
offence would be the relevant date.

      In terms of the aforementioned decision of the Constitution Bench such
determination is required to be made even if at the relevant time, the juvenile
crossed the age of eighteen years. In absence Of any other statute operating
in the field, Section 35 will have application and the court, while determining    G
such age would depend upon the materials brought on records by the parties
which would be admissible in evidence in terms of Section 35 of the Act.

     In Birad Mal Singhvi v. Anand Purohit, [1988] Supp. SCC 604, this
Court held:
                                                                                   H
    626                   SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A                  "To render a document admissible under Section 35, three
             conditions must be satisfied, firstly, entry that is relied on must be
             one in a public or other official book, register or record; secondly,
             it must be an entry stating a fact in issue or relevant fact; and thirdly,
             it must be made by a public servant in discharge of his official duty,
             or any other person in performance of a duty specially enjoined by
B            law. An entry relating to date of birth made in the school register
             is relevant and admissible under Section 35 of the 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."
c                                                               (emphasis supplied)

         In ,Sushi/ Kumar V. Rakesh Kumar, [2003] 8 sec 673, this Court as
    regards determination of age of a candidate in terms of Section 36(2) of the
    Representation of the People Act, 1951 observed :
D
                   "32. The age of a person in an election petition has to be
             determined not only on the basis of the materials placed on record
             but also upon taking into consideration the circumstances attending
             thereto. The initial burden to prove the allegations made in the
             election petition although was upon the election petitioner but for
E            proving the facts which were within the special knowledge of the
             respondent. the burden was upon him in terms of Section I 06 of
             the Evidence Act. It is also trite that when both parties have adduced
             evidence, the question of the onus of proof becomes academic [see
             Union of India v. Sugauli Sugar Works (P) Ltd and Cox and Kings
F            (Agents) Ltd. v. Workmen. Furthermore, an admission on the part
             of a party to the lis shall be binding on him and in any event a
             presumption must be made that the same is taken to be established."

         This Court therein followed, inter alia, Birad A4al Singhvi (supra) and
    several other decisions.
G
          In Updesh Kumar and Others v. Prithvi Singh and Others, [2001] 2
    SCC 524, this Court having regard to the overwhelming evidence came to
    the opinion that the Respondent No. I had attained the age of 21 years as
    on the date of his application for the allounent of the retail outlet. In that
H   case also reliance was placed on the matriculation certificate holding that the
                   R. S. GORKHI v. STATE [SINHA, J.]                        627

correction of the date of the birth in the certificate was an official act and      A
must be presumed to have been done in accordance with law.

     We, however, notice that in Ramdeo Chauhan alias Raj Nath v. State
of Assam, [200 l] 5 SCC 714, as regard applicability of the provision of
Section 35 of the Indian Evidence Act, 1872 vis-a-vis a school register, it
was stated :                                                                        B

               "19. It is not disputed that the register of admission of students
         relied upon by the defence is not maintained under any statutory
         requirement. The author of the register has also not been examined.
         The register is not paged (sic) at all. Column 12 of the register deals    c
         with "age at the time of admission''. Entries 1 to 45 mention the
         age of the students in terms of years, months and days. Entry 1 is
         dated 25-1-1988 whereas Entry 45 is dated 31-3-1989. Thereafter
         except for Entry 45, the page is totally blank and fresh entries are
         made w.e.f. 5-1-1990, apparently by one person up to Entry 32. All
         entries are dated 5-1-1990. The other entries made on various dates
                                                                                    D
         appear to have been made by one person though in different inks.
         Entries for the years 1990 are up to Entry 64 whereafter entries of
          1991 are made again apparently by the same person. Entry 36
         relates to Rajnath Chauhan, son of Firato Chauhan. In all the entries
         except Entry 32, after 5-1-1990 in column 12 instead of age some           E
         date is mentioned which, according to the defence is the date of
         birth of the student concerned. In Entry 32 the age of the student
         concerned has been recorded. In column 12 again in the entries with
         effect from 9-1-1992, the age of the students are mentioned and not
         their dates of birth. The manner in which the register has been            F
         maintained does not inspire confidence of the Court to put any
          reliance on it. Learned defence counsel has also not referred to any
         provision of law for accepting its authenticity in terms of Section
         3 5 of the Evidence Act. The entries made in such a register cannot
         be taken as a proof of age of the accused for any purpose."
                                                                                    G
     We are, however, not oblivious of a decision of this Court in Bhola
Bhagat v. State ofBihar, (1997] 8 SCC 720, wherein an obligation has been
cast on the court that wh}re such a plea is raised having regard to the
beneficial nature of the socially-oriented legislation, such a plea should be
examined with great care. We are, however, of the opinion that the same             H
    628                  SUPREME COURT REPORTS (2006] SUPP. 2 S.C.R.

A   would not mean that a person who is not entitled to the said benefit would
    be dealt with leniently only because such a plea is raised. Each plea must
    be judged on its own merit. Each case has to be considered on the basis of
    the materials brought on records.

          The aforementioned decisions have been noticed by this Court in
B   Zakarius Lukra and Others v. Union of India and Another, (2005] 3 sec
    161, wherein a Bench of this Court while entertaining an application under
    Article 32 of the Constitution of India opined that although the same was
    not maintainable, but having regard to the decision of this Court in Rupa
    Ashok Hurra v. Ashok Hurra, (2002] 4 SCC 388, the review petition should
C   be allowed to be converted into curative petition. [See also Raj Singh v. State
    of Haryana. [2000] 6 SCC 759].

          We are, however, not concerned in this case with such a situation.

          The deposition of the Head Master of the school in this case did not
D   satisfy the requirements of the law laid down in the aforementioned
    decisions.

         Mr. Mishra, however, relied upon Umesh Chandra v. State ofRajasthan,
    (1982] 2 sec 202. Therein a register maintained by a public school ofrepute
    had beeh produced. This Court relied thereupon, opining that Section 35
E   cannot be read with Sections 73 and 74 of the Evidence Act If a public
    school maintains a register in ordinary course of business, the same would
    be admissible in evidence.

         We have not been shown as to whether any register was required to
    be maintained under any statute. We have further not been shown as to
F   whether any register was maintained in the school at all. The original register
    has not been produced. The authenticity of the said register, if produced,
    could have been looked into. No person had been examined to prove as to
    who had made entries in the register. The school leaving certificate which
    was not issued by a person who was in the school at the time when the
G   appellant was admitted therein, cannot be relied upon.

          Reliance has also been placed by Mr, Mishra on Shoop Ram v. State
    of UP.. [ 1989] 3 SCC I, wherein the appellant was treated to be a child
    within the meaning of Section 2{4) of the Act; upon taking into consideration
    three factors : (i) that the appellant had produced a school certificate and
H
                   R. S. GORKHI v. STATE [SINHA, J.]                      629

correctness whereof was not questioned; (ii) the learned trial Judge thought      A
it fit to award the lesser sentence of imprisonment for life instead of capital
punishment when he pronounced the judgment on 19.09.1977 on the ground
that the appellant was 17 years of age which gave credence to the appellant's
case that he was less than 16 years of age on 03.10.1975 when the offences
were committed; and (iii) although he was medically examined, for
determination of age, the doctor based his opinion only on an estimate and        B
possibility of ail error of creeping into the said opinion could not be ruled
out. This Court, therefore, took into consideration more than one factors in
accepting the plea of the appellant therein that he was minor on the date of
commission of the offence.

     We have noticed hereinbefore that in this case the learned Sessions
                                                                                  c
Judge had discarded all other evidences which have been adduced on behalf
of the appellant in support of his contention that he was minor on the date
of commission of the offence. Entry of a date of birth in the school records
is merely a piece of evidence. Having regard to the experience of the court,
in Birad Mal Singhvi (supra), it was opined that the same should be authentic     D
in nature.

      The age of a person as recorded in the school register or otherwise may
be used for various purposes; namely, for obtaining admission; for obtaining
an appointment; for contesting election; registration of marriage; obtaining
a separate unit under the ceiling laws; and even for the purpose of litigating
                                                                                  E
before a civil forum, e.g. necessity of being represented in a court of law
by a guardian or where a suit is filed on the ground that the plaintiff being
a minor he was not appropriately represented therein or any transaction made
on his behalf was void as he was minor. A court of law for the purpose of
determining the age of a party to the lis, having regard to the provisions of     F
Section 35 of the Evidence Act will have to apply the same standard. No
different standard can be applied in case of an accused as in a case of
abduction or rape, or similar offence where the victim or the prosecutrix
although might have consented with the accused, if on the basis of the entries
made in the register maintained by the school, a judgment of conviction is
recorded, the accused would be deprived of his constitutional right under
                                                                                  G
Article 21 of the Constitution, as in that case the accused may unjustly be
convicted.

     We are, therefore, of the opinion that that until the age of a person is
required to be determined in a manner laid down under a statute, different        H
    630                  SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A   standard of proof should not be adopted. It is no doubt true that the court
    must strike a balance. In case of a dispute, the court may appreciate the
    evidence having regard to the facts and circumstance of the case. It would
    be a duty of the court of law to accord the benefit to a juvenile, provided
    he is one. To give the same benefit to a person who in fact is not a juvenile
    may cause injustice to the victim. In this case, the appellant had never been
B   serious in projecting his plea that he on the date of commission of offence
    was a mipor. He made such statement for the first time while he was
    examined under Section 313 of the Code of Criminal Procedure.

          The family background of the appellant is also a relevant fact. His
c   father was a 'Pradhan' of the village. He was found to be in possession of
    an unlicensed firearm. He was all along represented by a lawyer. The court
    estimated his age to be 18 years. He was tried jointly with the other accused.
    He had been treated alike with the other accused. On merit of the matter also
    the appellant stands on the same footing as other accused. The prosecution
    has proved its case. In fact no such plea could be raised as the special leave
D   petition of the persons similarly situated was dismissed when the court issued
    notice having regard to the contention raised by him for the first time that
    he was minor on the date of occurrence.

         Having regard to the peculiar facts and circumstances of this case, we
    do not accept the report of the learned Sessions Judge.
E
         For the reasons aforementioned, we do not find any merit in this appeal
    which is dismissed accordingly.

    v.s.s.                                                    Appeal dismissed.