MANOJ @ MONU @ VISHAL CHAUDHARY versus STATE OF HARYANA & ANR on 15 February 2022

MANOJ @ MONU @ VISHAL CHAUDHARY

v.

STATE OF HARYANA & ANR.

(Criminal Appeal No. 207 of 2022)

FEBRUARY 15, 2022

[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]

Juvenile Justice (Care and Protection of Children) Act, 2015– s.94(2)(ii) – Juvenile Justice (Care and Protection of Children)Rules, 2007 – r.12(3) – U.P Panchayat Raj Act, 1947 – U.P.Panchayat Raj (Maintenance of Family Register) Rules, 1970 –Appellant-accused was declared as juvenile in conflict with law byAdditional Sessions Judge – Order set aside by High Court, appellantordered to stand trial as an adult – On appeal, held: Plea of juvenilityhas to be raised in a bonafide and truthful manner – To seek juvenility,if the reliance is on a document which is not reliable or is dubiousin nature, the appellant cannot be treated to be juvenile keeping inview that the Act is a beneficial legislation – The provisions of thestatute are to be interpreted liberally but the benefit cannot begranted to the appellant who has approached the Court withuntruthful statement – Appellant approached the Court with uncleanhands as the documents relied upon by him are not genuine andtrustworthy, and thus cannot be given benefit of juvenility – Viewtaken by High Court is a possible view in law and does not call forany interference.

Juvenile Justice – Determination of Juvenility – OssificationTest – Held: Ossification test varies based on individualcharacteristics and hence its reliability has to be examined in eachcase – It cannot be reasonably expected to formulate a uniformstandard for determination of the age of the union of epiphysis onaccount of variations in climatic, dietetic, hereditary and otherfactors affecting the people of the different States of India.

Juvenile Justice – Juvenile Justice (Care and Protection ofChildren) Act, 2015 – U.P Panchayat Raj Act, 1947 – s.110 – U.P.Panchayat Raj (Maintenance of Family Register) Rules, 1970 –Juvenile Justice (Care and Protection of Children) Rules, 2007 –r.12(3) – Family register – Evidentiary value of – Held: How much

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Aevidentiary value is to be attached to the family register is a questionof fact, but to say that it is entirely not relevant would not be thecorrect enunciation of law – The register is maintained in accordancewith the rules framed under a statute – Entries made in the regularcourse of the affairs of the Panchayat would thus be relevant butthe extent of such reliance would be in view of the peculiar factsBand circumstances of each case – Further, in terms of r.12(3)(iii) ofthe Rules, birth certificate issued by corporation or municipalauthority or a panchayat is a relevant document to prove thejuvenility – Family register is not a birth certificate – Therefore, itwould not strictly fall within clause (iii) of r.12(3) – Even s.94(2)(ii)Cof the 2015 Act contemplates a birth certificate issued by a panchayatto determine the age.

Dismissing the appeal, the Court

HELD: 1. The Juvenile Justice (Care and Protection ofChildren) Act, 2000 stands repealed by the Juvenile Justice (CareDand Protection of Children) Act, 2015. The procedure fordetermining the age is now part of Section 94 of 2015 Act whichwas earlier provided under Rule 12 of Juvenile Justice (Careand Protection of Children) Rules, 2007 (the Rules). Theappellant relies upon three documents such as a Birth Certificate;ESchool leaving Certificate and the Report of the Ossification Testin support of his plea of being a juvenile, whereas the State reliesupon the family register prescribed by the Family Register Rules.[Paras 5 and 6][287-F-H; 288-A-B]

2. In the birth certificate issued by the Government of UttarFPradesh, the date of birth is mentioned as 13.05.1993. Such dateof birth was registered on 19.11.2014 after the filing of theapplication under Section 7A of the Act on 7.10.2014. Such dateof birth certificate has been arranged to claim benefit under the2000 Act. The date of birth certificate produced by the appellantcannot be relied upon as it was obtained after filing of theGapplication under Section 7A of the Act on 7.10.2014. As per thebirth certificate, the appellant was born at house. Therefore, interms of Section 8(1)(a) and 10(1)(i) of the Registration of Birthsand Deaths Act, 1969, birth had to be reported to the Registrarby the head of the household or by the nearest relative of the H

head present in the house or by the oldest adult male personpresent. In case birth is reported within 30 days, it shall beregistered on payment of such late fee as may be prescribed.There are other conditions for registration of birth after 30 daysas well. Therefore, the Courts have rightly not relied upon dateof birth certificate which was granted on 19.11.2014 as it wasobtained after filing of the application and registered many yearsafter the birth and not immediately or within the prescribed timeperiod. [Paras 8-10][288-D-G; 289-F-G]

3. The school leaving certificate (Ex. A-3) has been provedby examining Umesh Kumar, Head Teacher of Adarsh SikshaSadan, Pinna. As per the statement of the witness, the schoolwas functioning in the year 1999 in Village Kheri, Dudadhari andwas shifted to Village Pinna in the year 2009-2010 where he hadbeen working as Head Teacher from the year 2000. As per thecertificate, the appellant was a student of such school from12.7.1999 till 2.7.2003. In cross-examination, he admits that theschool is a private school and the father of the appellant has notproduced any certificate of the appellant attending the first class.The appellant was admitted directly in the 2nd standard. He admitsthat Exhibit A-1, the admission form, is a loose sheet prepared inhis handwriting and it does not bear any counter signature of anyhigher authority. He has not even produced any proof ofregistration of the school with the Education Department. Theso-called admission form was filled up by him in 1999, so was theschool leaving certificate of the year 2003. A perusal of the schoolleaving certificate shows that it was issued on 29.9.14 by Principalof Adarsh Siksha Sadan, Village Kheri, Dudadhari, though theschool had shifted to Village Pinna in the year 2009-2010. It isunclear and amusing as to how a certificate be issued by aparticular school which has been shifted to another village. Thismakes the process of issuance of certificate doubtful. On theother hand, Ex R-1 is the certificate produced by the State statingthat no school exists by the name of Adarsh Siksha Sadan in thevillage Kheri, Dudadhari. Such certificate has been issued byKanishkvir Singh of Primary School, Kheri. The learnedAdditional Sessions Judge or the High Court have not reliedupon such certificate. Such school leaving certificate is unreliable AB

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Aand that the certificate is only a procured document for provingjuvenility before the court. [Paras 11-14][289-G-H; 290-A-F]

4.1 The Medical Board has opined the age of the appellantbetween 23 to 24 years, when the appellant was examined on13.05.2016. Ossification Test Report has been relied upon byBthe Additional Sessions Judge to allow the plea of juvenility raisedby the appellant. Ossification test varies based on individualcharacteristics and hence its reliability has to be examined ineach case. It cannot be reasonably expected to formulate a uniformstandard for determination of the age of the union of epiphysis onaccount of variations in climatic, dietetic, hereditary and otherCfactors affecting the people of the different States of India. [Paras15 and 16][290-F-G; 291-C]

Medical Jurisprudence and Toxicology by Modi, 26thEdition, pg. 221 – referred to.

D4.2 Dr. Rajeev Chauhan, Member of the Medical Board inhis cross-examination admitted that a man with the age of 30 to32 years would also find the same fusion as found in a man whohas crossed the age of 22 years. The conclusion of the MedicalBoard that the appellant was 23 to 24 years cannot be said to beconclusive or helpful to determine the age of the appellant to beEless than 18 years on the date of commission of offence. [Para22][294-C-E]

Jyoti Prakash Rai v. State of Bihar (2008) 15 SCC 223: [2008] 3 SCR 818; Mukarrab v. State of U.P. (2017)2 SCC 210 : [2016] 8 SCR 557; Abuzar Hossain v.FState of West Bengal (2012) 10 SCC 489 : [2012] 9SCR 244; Parag Bhati v. State of Uttar Pradesh (2016)12 SCC 744 : [2016] 2 SCR 1089; Ramdeo Chauhanv. State of Assam (2001) 5 SCC 714 : [2001] 3 SCR669 – relied on.

G5.1 The Family Register Rules prescribes preparation of aFamily Register in the State of Uttar Pradesh which containsfamily-wise names and particulars of all persons ordinarily residingin the village pertaining to the Gaon Sabha. Such Rules have beenframed under Section 110 of the U.P Panchayat Raj Act, 1947.

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The High Court has relied on such certificate to hold that theappellant is not juvenile. A perusal of the Rules shows that onepage is allotted to each family and that any change in the familyconsequent upon the births and deaths is required to beincorporated on such page. The changes are also required to belaid before the next meeting of Gram Panchayat. Thus, it is evidentthat such Rules are statutorily framed in pursuance of an Act.The entries in the register are required to be made by the officialsof the Gram Panchayat as part of their official duty. Neeraj Kumar,Gram Panchayat Officer of Block Barwala was examined whereinhe stated that the entries in the register are made on the basis ofinformation given by the family members, though he could notdepose as to who had made these entries. [Paras 23 and 24][294-E-F; 296-B-D]

5.2 Learned Senior Counsel for the appellant contends thatthe family register cannot be made basis of determining the ageof the juvenile under the provisions of the Act and the Rulesframed thereunder. Section 35 of the Evidence Act, 1872 isattracted both in civil and criminal proceedings. It contemplatesthat a register maintained in the ordinary course of business by apublic servant in discharge of his official duty or by any otherperson in performance of a duty specially enjoined by the law ofthe country in which such register is kept would be a relevantfact. Such Rules are not irrelevant as argued. This family registerdoes not only contain date of birth but also keeps the records ofany additions in the family, though the evidentiary value needs tobe examined in each case. This Court is unable to approve thebroad view taken by the High Court in some of the cases thatFamily Register is not relevant to determine age of the familymembers. It is a question of fact as to how much evidentiary valueis to be attached to the family register, but to say that it is entirelynot relevant would not be the correct enunciation of law. Theregister is being maintained in accordance with the rules framedunder a statute. The entries made in the regular course of theaffairs of the Panchayat would thus be relevant but the extent ofsuch reliance would be in view of the peculiar facts andcircumstances of each case. In terms of Rule 12(3)(iii) of theRules, birth certificate issued by corporation or municipalauthority or a panchayat is a relevant document to prove the AB

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Ajuvenility. The family register is not a birth certificate. Therefore,it would not strictly fall within clause (iii) of Rule 12(3) of theRules. Even Section 94(2)(ii) of the 2015 Act contemplates a birthcertificate issued by a panchayat to determine the age. [Paras 26,32 and 34-37][296-G; 298-A-B; 299-E-H; 300-A]

BRavinder Singh Gorkhi v. State of U.P. (2006) 5 SCC584 : [2006] 2 Suppl. SCR 615 – relied on.

Krishna Pal v. State of U.P 2010 SCC OnLine All 695;Shiv Patta v. State of U.P. 2013 SCC OnLine All 14202– approved.C5.3 The appellant sought to rely upon juvenility only on thebasis of school leaving record in his application filed under Section7A of the 2000 Act. Such school record is not reliable and seemsto be procured only to support the plea of juvenility. The appellanthas not referred to date of birth certificate in his application as itDwas obtained subsequently. The plea of juvenility has to be raisedin a bonafide and truthful manner. If the reliance is on a documentto seek juvenility which is not reliable or dubious in nature, theappellant cannot be treated to be juvenile keeping in view thatthe Act is a beneficial legislation. The provisions of the statuteare to be interpreted liberally but the benefit cannot be grantedEto the appellant who has approached the Court with untruthfulstatement. The appellant has approached the Court with uncleanhands as the documents relied upon by him are not genuine andtrustworthy. Thus, the appellant cannot be given benefit ofjuvenility. The view taken by the High Court is a possible view inFlaw and does not call for any interference in the present appeal.[Paras 38 and 39][300-B-E]

Babloo Pasi v. State of Jharkhand and Anr. (2008) 13SCC 133 : [2008] 14 SCR 161 – relied on.

Hare Ram Chowdhary v. State of U.P. 1989 SCC OnLineGALL 438; Anil Kumar v. Suchita. 2009 SCC OnLineALL 671; Bahadur v. State of U.P. 2009 SCC OnLineALL 1757; Abdul Hakeem Pardhan and Others v. Stateof U.P 2015 SCC OnLine ALL 5201; Ram Murti Devi H

MANOJ @ MONU @ VISHAL CHAUDHARY v. STATE OFHARYANA & ANR.

v. State of U.P. and Others 2021 SCC OnLine ALL260; Pramod Kumar Manglik v. Smt. Sadhana Rani1989 SCC OnLine ALL 125 – referred to.

Case Law Reference

[2008] 3 SCR 818relied onPara 18[2016] 8 SCR 557relied onPara 19[2012] 9 SCR 244relied onPara 19[2016] 2 SCR 1089relied onPara 19[2008] 14 SCR 161relied onPara 20[2001] 3 SCR 669relied onPara 21[2006] 2 Suppl. SCR 615relied onPara 32

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.207 of 2022.

From the Judgment and Order dated 30.07.2019 of the High Courtof Punjab and Haryana at Chandigarh in C.R.R. No.2258 of 2016 (O&M).

Rajul Bhargava, Sr. Adv., Kartikeya Bhargava, Swapnil Sinha,Advs. for the Appellant.

Dinesh Chander Yadav, AAG, Dr. Anmol Rattan Sidhu, Sr. Adv.,Ishwar Chand, Dr. Monika Gusain, Narender Kumar Verma, Advs. forthe Respondents.

The Judgment of the Court was delivered by HEMANT GUPTA, J.

1. The challenge in the present appeal is to an order passed by theHigh Court of Punjab and Haryana at Chandigarh dated 30.07.2019,whereby an order passed by the learned Additional Sessions Judge,Fatehabad declaring the present appellant as juvenile in conflict withlaw was set aside and the appellant was ordered to stand trial as anadult.

2. The facts relevant for the determination of the present appealare that the appellant was arrayed as an accused in respect of anoccurrence on 18.01.2011, wherein the allegation against the appellantwas that he waylaid a car and snatched Rs. 22 lacs from the occupants A

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Aof the car. The complainant was one of the occupant of the car,whereas, another occupant - Bhim Singh lost his life on account ofbullet fired on him. During the pendency of the trial, the appellant movedan application on 07.10.2014 claiming that he was a juvenile as on thedate of the incident, relying upon his school record disclosing his dateof birth as 13.05.1993. The learned Additional Sessions Judge acceptedBthe plea of the appellant and declared him to be juvenile vide orderdated 09.01.2015. Such order was challenged before the High Courtby way of a revision petition. The revision was allowed on 04.05.2016and the matter was remitted back to the trial court for adjudicatingafresh.C

3. The learned Additional Sessions Judge, after remand, foundthe appellant to be 16 years 8 months and 5 days old on the date ofincident as per the Ossification Test report. The age of the appellant asassessed by the Board of Doctors in the report was 23-24 years. TheHigh Court however while setting aside the order of the learned AdditionalDSessions Judge relied upon the family register prepared under The U.P.Panchayat Raj (Maintenance of Family Register) Rules, 1970[1] to holdthat the appellant’s plea of juvenility cannot be allowed. Such order isthe subject matter of challenge in the present appeal.

4. The procedure to be followed for determination of age isEprovided under Rule 12(3)(b) of the Juvenile Justice (Care and Protectionof Children) Rules, 2007[2], which reads as:

“12. Procedure to be followed in determination of age:

(1) In every case concerning a child or a juvenile in conflict withlaw, the court or the Board or as the case may be the CommitteeFreferred to in rule 19 of these rules shall determine the age ofsuch juvenile or child or a juvenile in conflict with law within aperiod of thirty days from the date of making of the applicationfor that purpose.

(2) The Court or the Board or as the case may be the CommitteeGshall decide the juvenility or otherwise of the juvenile or the childor as the case may be the juvenile in conflict with law, prima facieon the basis of physical appearance or documents, if available,and send him to the observation home or in jail.

1 For short, ‘Family Register Rules’

2 For short, the ‘Rules’

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(3) In every case concerning a child or juvenile in conflict withlaw, the age determination inquiry shall be conducted by the courtor the Board or, as the case may be, the Committee by seekingevidence by obtaining- (a) (i) the matriculation or equivalent certificates, if available;and in the absence whereof;

(ii) the date of birth certificate from the school (other thana play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipalauthority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a)above, the medical opinion will be sought from a duly constitutedMedical Board, which will declare the age of the juvenile orchild. In case exact assessment of the age cannot be done, theCourt or the Board or, as the case may be, the Committee, forthe reasons to be recorded by them, may, if considerednecessary, give benefit to the child or juvenile by consideringhis/her age on lower side within the margin of one year and, while passing orders in such case shall, after taking intoconsideration such evidence as may be available, or the medicalopinion, as the case may be, record a finding in respect of his ageand either of the evidence specified in any of the clauses (a)(i),(ii), (iii) or in the absence whereof, clause (b) shall be the conclusiveproof of the age as regards such child or the juvenile in conflictwith law. “

5. The Juvenile Justice (Care and Protection of Children) Act,2000[3] stands repealed by the Juvenile Justice (Care and Protection ofChildren) Act, 2015[4]. The procedure for determining the age is now partof Section 94 of 2015 Act which was earlier provided underabovementioned Rule 12 of the Rules.

6. Admittedly, there is no matriculation or equivalent certificate ascontemplated under Rule 12(3)(a)(i). The appellant relied upon date ofbirth certificate issued by the school first attended. The learned AdditionalSessions Judge on the other hand relied upon report Exhibit AW1/A

3 2000 Act4 2015 Act

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Arendered by the Board of Doctors on the basis of Ossification Test reportdated 13.05.2016 wherein the age of the appellant was found to be 23 to24 years. The learned Additional Sessions Judge gave the benefit ofvariation and determined the age as 22 years on the date of report andthus he was found to be 16 years 8 months and 5 days old. Still further,the appellant was found entitled to additional benefit of one year in termsBof Rule 12(3)(b) of the Rules, therefore, the appellant was held to bejuvenile in conflict with law. The learned Additional Sessions Judge hasnot relied upon the school leaving certificate or the date of birth certificaterelied upon by the appellant.

7. The appellant relies upon three documents such as a BirthCCertificate; School leaving Certificate and the Report of the OssificationTest in support of his plea of being a juvenile, whereas the State reliesupon the family register prescribed by the Family Register Rules.

i. Birth Certificate

D8. First, we shall examine the truthfulness of the birth certificateissued by the Government of Uttar Pradesh wherein the date of birth ismentioned as 13.05.1993. Such date of birth was registered on 19.11.2014after the filing of the application under Section 7A of the Act on 7.10.2014.

9. We find that such date of birth certificate has been arranged toEclaim benefit under the 2000 Act. The date of birth certificate producedby the appellant cannot be relied upon as it was obtained after filing ofthe application under Section 7A of the Act on 7.10.2014. As per thebirth certificate, the appellant was born at house. Therefore, in terms ofSection 8(1)(a) and 10(1)(i) of the Registration of Births and DeathsAct, 1969[5], birth had to be reported to the Registrar by the head of theFhousehold or by the nearest relative of the head present in the house orby the oldest adult male person present. In case birth is reported within30 days, it shall be registered on payment of such late fee as may beprescribed. There are other conditions for registration of birth after 30days as well. The relevant provisions of the Act read thus:G“8. Persons required to register births and deaths.-(1) Itshall be the duty of the persons specified below to give or causeto be given, either orally or in writing, according to the best oftheir knowledge and belief, within such time as may be prescribed, H5 Registration Act information to the Registrar of the several particulars required tobe entered in the forms prescribed by the State Government undersub-section (1) of section 16-

(a) in respect of births and deaths in a house, whether residentialor non-residential, not being any place referred to in clauses(b) to (e), the head of the house or, in case more than onehousehold live in the house or the household, and if he is notpresent in the house at any time during the period withinwhich the birth or death has to be reported, the nearestrelative of the head present in the house, and in the absenceof any such person, the oldest adult male person presenttherein during the said period; xxx xxx xxx

10. Duty of certain persons to notify births and deaths andto certify cause of death.- (1) It shall be the duty of-

(i) the midwife or any other medical or health attendant at a birthor death,

(ii) the keeper or the owner of a place set apart for the disposal ofdead bodies or any person required by a local authority to bepresent at such place, or

(iii) any other person whom the State Government may specify inthis behalf by his designation.

to notify every birth or death or both at which he or she attendedor was present, or which occurred in such areas as may beprescribed, to the Registrar within such time and in such manneras may be prescribed.”

10. Therefore, the Courts have rightly not relied upon date ofbirth certificate which was granted on 19.11.2014 as it was obtainedafter filing of the application and registered many years after the birthand not immediately or within the prescribed time period.

ii. School Leaving Certificate

11. The school leaving certificate (Ex. A-3) has been proved byexamining Umesh Kumar, Head Teacher of Adarsh Siksha Sadan, Pinna.As per the statement of the witness, the school was functioning in theyear 1999 in Village Kheri, Dudadhari and was shifted to Village Pinna A

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Ain the year 2009-2010 where he had been working as Head Teacherfrom the year 2000. As per the certificate, the appellant was a studentof such school from 12.7.1999 till 2.7.2003. In cross-examination, headmits that the school is a private school and the father of the appellanthas not produced any certificate of the appellant attending the first class.The appellant was admitted directly in the 2[nd] standard. He admits thatBExhibit A-1, the admission form, is a loose sheet prepared in hishandwriting and it does not bear any counter signature of any higherauthority. He has not even produced any proof of registration of theschool with the Education Department.

12. The so-called admission form was filled up by him in 1999, soCwas the school leaving certificate of the year 2003. A perusal of theschool leaving certificate shows that it was issued on 29.9.14 by Principalof Adarsh Siksha Sadan, Village Kheri, Dudadhari, though the schoolhad shifted to Village Pinna in the year 2009-2010. It is unclear andamusing as to how a certificate be issued by a particular school whichDhas been shifted to another village. This makes the process of issuanceof certificate doubtful.

13. On the other hand, Ex R-1 is the certificate produced by theState stating that no school exists by the name of Adarsh Siksha Sadanin the village Kheri, Dudadhari. Such certificate has been issued byEKanishkvir Singh of Primary School, Kheri.

14. The learned Additional Sessions Judge or the High Court havenot relied upon such certificate. We find that such school leaving certificateis unreliable and that the certificate is only a procured document forproving juvenility before the court.F

iii. Ossification Test Report

15. The Medical Board has opined the age of the appellantbetween 23 to 24 years, when the appellant was examined on 13.05.2016.This report has been relied upon by the learned Additional Sessions Judgeto allow the plea of juvenility raised by the appellant. However, it is to beGnoted that ossification test varies based on individual characteristics andhence its reliability has to be examined in each case.

16. A textbook of Medical Jurisprudence and Toxicology by Modi,26[th] Edition, pg. 221, delineates the factors relevant to determining theage-H

(1) Height and Weight- it is opined that progressive increase inheight and weight according to age varies so greatly in individualsthat it cannot be depended upon in estimating age in medico-legalcases.

(2) Ossification of Bones- this sign is helpful for determining theage until ossification is completed, for skiagraphy has now madeit possible to determine even in living persons, the extent ofossification, and the union of epiphysis in bones.

17. Hence, it cannot be reasonably expected to formulate a uniformstandard for determination of the age of the union of epiphysis on accountof variations in climatic, dietetic, hereditary and other factors affectingthe people of the different States of India.

18. Furthermore, this Court in a judgment reported as JyotiPrakash Rai v. State of Bihar[6] held that the medical report determiningthe age of a person has never been considered by courts of law as alsoby the medical scientist to be conclusive in nature. It was also found thatthough the Act is a beneficial legislation but principles of beneficiallegislation are to be applied only for the purpose of interpretation of thestatute and not for arriving at a conclusion as to whether a person isjuvenile or not. The Court held as under:

“12. The 2000 Act is indisputably a beneficial legislation. Principlesof beneficial legislation, however, are to be applied only for thepurpose of interpretation of the statute and not for arriving at aconclusion as to whether a person is juvenile or not. Whether anoffender was a juvenile on the date of commission of the offenceor not is essentially a question of fact which is required to bedetermined on the basis of the materials brought on record by theparties. In the absence of any evidence which is relevant for thesaid purpose as envisaged under Section 35 of the Evidence Act,the same must be determined keeping in view the factual matrixinvolved in each case. For the said purpose, not only relevantmaterials are required to be considered, the orders passed by thecourt on earlier occasions would also be relevant.

13. A medical report determining the age of a person has neverbeen considered by the courts of law as also by the medical A

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Ascientists to be conclusive in nature. After a certain age it is difficultto determine the exact age of the person concerned on the basisof ossification test or other tests. This Court in Vishnu v. State ofMaharashtra [(2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217] opined: (SCC p. 290, para 20)

B“20. It is urged before us by Mr Lalit that the determination ofthe age of the prosecutrix by conducting ossification test isscientifically proved and, therefore, the opinion of the doctorthat the girl was of 18-19 years of age should be accepted. Weare unable to accept this contention for the reasons that theexpert medical evidence is not binding on the ocular evidence.CThe opinion of the Medical Officer is to assist the court as heis not a witness of fact and the evidence given by the MedicalOfficer is really of an advisory character and not binding onthe witness of fact.”

In the aforementioned situation, this Court in a number of judgmentsDhas held that the age determined by the doctors should be givenflexibility of two years on either side.”

19. In a judgment reported as Mukarrab v. State of U.P.[7], it wasobserved that a blind and mechanical view regarding the age of a personcannot be adopted solely on the basis of medical opinion by the radiologicalEexamination. It was also held that the purpose of 2000 Act is not to giveshelter to the accused of grave and heinous offences. Relying uponjudgment of this Court reported as Abuzar Hossain v. State of WestBengal[8] and Parag Bhati v. State of Uttar Pradesh[9], it was held asunder:F

“27. In a recent judgment, State of M.P. v. Anoop Singh [Stateof M.P. v. Anoop Singh, (2015) 7 SCC 773 : (2015) 4 SCC (Cri)208] , it was held that the ossification test is not the sole criteriafor age determination. Following Babloo Pasi [Babloo Pasi v. Stateof Jharkhand, (2008) 13 SCC 133 : (2009) 3 SCC (Cri) 266]Gand Anoop Singh cases [State of M.P. v. Anoop Singh, (2015) 7SCC 773 : (2015) 4 SCC (Cri) 208] , we hold that ossification testcannot be regarded as conclusive when it comes to ascertaining 7 (2017) 2 SCC 210

8 (2012) 10 SCC 489

H9 (2016) 12 SCC 744

the age of a person. More so, the appellants herein have certainlycrossed the age of thirty years which is an important factor to betaken into account as age cannot be determined with precision. Infact in the medical report of the appellants, it is stated that therewas no indication for dental x-rays since both the accused werebeyond 25 years of age.”

20. This Court in a judgment reported as Babloo Pasi v. State ofJharkhand and Anr.[10] held that it is neither feasible nor desirable to laydown an abstract formula to determine the age of a person. It was heldas under:

“22. It is well settled that it is neither feasible nor desirable to laydown an abstract formula to determine the age of a person. Thedate of birth is to be determined on the basis of material on recordand on appreciation of evidence adduced by the parties. Themedical evidence as to the age of a person, though a very usefulguiding factor, is not conclusive and has to be considered alongwith other cogent evidence.”

21. In Ramdeo Chauhan v. State of Assam[11], it was held that X-Ray Ossification Test may provide a surer basis for determining the ageof an individual than the opinion of a medical expert but it can by nomeans be so infallible and accurate test so as to indicate the exact dateof birth of the person concerned. It was held as under:

“21. Relying upon a judgment of this Court in Jaya Mala v. HomeSecy., Govt. of J&K [(1982) 2 SCC 538 : 1982 SCC (Cri) 502 :AIR 1982 SC 1297 : 1982 Cri LJ 1777] the learned defence counselsubmitted that the Court can take notice that the marginal error inage ascertained by radiological examination is two years on eitherside. The aforesaid case is of no help to the accused inasmuch asin that case the Court was dealing with the age of a detenu takenin preventive custody and was not determining the extent ofsentence to be awarded upon conviction of an offence. Otherwisealso even if the observations made in the aforesaid judgment aretaken note of, it does not help the accused in any case. The doctorhas opined the age of the accused to be admittedly more than 20years and less than 25 years. The statement of the doctor is no 10 (2008) 13 SCC 133

11 (2001) 5 SCC 714

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11 (2001) 5 SCC 714

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Amore than an opinion, the court has to base its conclusions uponall the facts and circumstances disclosed on examining of thephysical features of the person whose age is in question, inconjunction with such oral testimony as may be available. An X-ray ossification test may provide a surer basis for determining theage of an individual than the opinion of a medical expert but it canBby no means be so infallible and accurate a test as to indicate theexact date of birth of the person concerned. Too much of reliancecannot be placed upon textbooks, on medical jurisprudence andtoxicology while determining the age of an accused. In this vastcountry with varied latitudes, heights, environment, vegetation andCnutrition, the height and weight cannot be expected to be uniform.”

22. It is pertinent to note here that Dr. Rajeev Chauhan, Memberof the Medical Board in his cross-examination admitted that a man withthe age of 30 to 32 years would also find the same fusion as found in aman who has crossed the age of 22 years. Keeping in view the saidDstatement, we find that the conclusion of the Medical Board that theappellant was 23 to 24 years cannot be said to be conclusive or helpfulto determine the age of the appellant to be less than 18 years on the dateof commission of offence.

iv. Family RegisterE

23. The Family Register Rules prescribes preparation of a FamilyRegister in the State of Uttar Pradesh which contains family-wise namesand particulars of all persons ordinarily residing in the village pertainingto the Gaon Sabha. Such Rules have been framed under Section 110 ofthe U.P Panchayat Raj Act, 1947. The High Court has relied on suchFcertificate to hold that the appellant is not juvenile. Such Rules read asunder:

“1. (1) These rules may be called the U.P. Panchayat Raj(Maintenance of Family Registers) Rules, 1970.

2. Form and preparation of family register.- A family register inGform A shall be prepared containing family-wise the names andparticulars of all persons ordinarily residing in the village pertainingto the Gaon Sabha. Ordinarily one page shall be allotted to eachfamily in the register. There shall be a separate section in theregister for families belonging to the Scheduled Castes. The registershall be prepared in Hindi in Devanagri scrip.H

3. General conditions for registration in the register.- Every personwho has been ordinarily resident within the area of the Gaon Sabhashall be entitled to be registered in the family register.

Explanation.- A person shall be deemed to be ordinarily residentin a village if he has been ordinarily residing in such village or is inpossession of a dwelling house therein ready for occupation.

4. Quarterly entries in the family register.- At the beginning ofeach quarter commencing from April in each year, the Secretaryof a Gaon Sabha shall make necessary changes in the familyregister consequent upon births and deaths, if any occurring in theprevious quarter in each family. Such changes shall be laid beforethe next meeting of the Gaon Panchayat for information.

5. Correction of any existing entry.- The Assistant DevelopmentOfficer (Panchayat) may on an application made to him in thisbehalf order the correction of any existing entry in the familyregister and the Secretary of the Gaon Sabha shall then correctthe Register accordingly.

6. Inclusion of names in the Register.- (1) Any person whosename is not included in the family register may apply to theAssistant Development Officer (Panchayat) for the inclusion ofhis name therein.

(2) The Assistant Development Officer (Panchayat) shall, ifsatisfied, after such enquiry as he thinks fit that the applicant isentitled to be registered in the Register, direct that the name ofthe applicant be included therein and the Secretary of the GaonSabha shall include the name accordingly.

6A Any person aggrieved by an order made under Rule 5 or Rule6 may, within 30 days from the date of such order prefer andappeal to the Sub-Divisional Officer whose decision shall be final.

7. Custody and preservation of the register.-(1) The Secretary ofthe Gaon Sabha shall be responsible for the safe custody of thefamily register.

(2) Every person shall have a right to inspect the Register and toget attested copy of any entry or extract therefrom in such mannerand on payment of such fees, if any, as may be specified in Rule73 of the U.P. Panchayat Raj Rules.

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(See RULE 2)

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Note.- In the remarks column the number and date of the order, ifany, by which any name is added or struck off should be givenBalongwith the signature of the person making the entry.”

24. A perusal of the Rules shows that one page is allotted to eachfamily and that any change in the family consequent upon the births anddeaths is required to be incorporated on such page. The changes arealso required to be laid before the next meeting of Gram Panchayat.CThus, it is evident that such Rules are statutorily framed in pursuance ofan Act. The entries in the register are required to be made by the officialsof the Gram Panchayat as part of their official duty. Neeraj Kumar,Gram Panchayat Officer of Block Barwala was examined wherein hestated that the entries in the register are made on the basis of informationDgiven by the family members, though he could not depose as to who hadmade these entries.

25. Jagpal Singh, father of the appellant, had appeared as a witnessto depose that the appellant was born on 13.5.1993. He deposed thatafter the birth of the appellant, a daughter was born on 15.4.1996 andthereafter a son on 21.9.1997. The High Court relied upon FamilyERegister (Exhibit R-4) produced by Neeraj Kumar, RW-2, wherein theyear of birth of the appellant was mentioned as 1990 and 1996 as theyear of birth of daughter and 1998 as the year of birth of another son.The years of birth of the brother and sister of the appellant are almostthe same as deposed by the father. The High Court found that suchFdocument cannot be excluded from consideration for the reason as suchdocument has been prepared in the ordinary course of business of theGram Panchayat.

26. Mr. Bhargava, learned Senior Counsel for the appellantcontends that the family register cannot be made basis of determiningGthe age of the juvenile under the provisions of the Act and the Rulesframed thereunder. To support such contention, reliance was placed onthe judgments of the Allahabad High Court such as Hare RamChowdhary v. State of U.P.[12]; Anil Kumar v. Suchita[13]; Bahadur v.

12 1989 SCC OnLine ALL 438H13 2009 SCC OnLine ALL 671

State of U.P.[14]; Abdul Hakeem Pardhan and Others v. State of U.P.[15]and Ram Murti Devi v. State of U.P. and Others[16].

27. Hare Ram Chowdhary is an order referring the matter tothe Full Bench as to whether the decision of that Court in PramodKumar Manglik v. Smt. Sadhana Rani[17] is correctly decided. Sinceno issue has been finally directed, therefore any observations in thereference order are not relevant.

28. In Anil Kumar, the dispute related to an election petitionregarding date of birth of a candidate named Suchita. She claimed herselfto be born on 03.07.1984 as against the date of birth entry in the schoolrecords. The family register was relied upon to prove the date of deathof her mother. The learned Single Judge Bench held that the familyregister is only a document showing the names of the members of thefamily and they are ordinarily resident of a village concerned. It cannotbe conclusive proof either of the date of birth or of death of any familymember mentioned therein.

29. In Bahadur, the accused relied upon entries in the familyregister to declare him as juvenile, relying upon U.P. Juvenile Justice(Care and Protection of Children) Rules, 2004. The High Court rejectedthe family register on the ground that the entry produced was on thebasis of register prepared in the year 2000 which was prepared on thebasis of original register of 1970, but the original register of the year1970 was not produced.

30. In Abdul Hakeem Pardhan, the Division Bench of the HighCourt held that entries made in the family register were never made inthe regular course of official duties. The family register may be anevidence to show that the person is living in the family but not an evidencefor ascertaining age.

31. In Ram Murti Devi, the entry in the family register was alteredby the office of District Magistrate. The said issue is not arising forconsideration before this Court. The parties were referred to seek remedyin terms of Rule 6A of the Family Register Rules.

14 2009 SCC OnLine ALL 175715 2015 SCC OnLine ALL 520116 2021 SCC OnLine ALL 26017 1989 SCC OnLine ALL 125

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A32. Section 35 of the Evidence Act, 1872 is attracted both in civiland criminal proceedings. It contemplates that a register maintained inthe ordinary course of business by a public servant in discharge of hisofficial duty or by any other person in performance of a duty speciallyenjoined by the law of the country in which such register is kept wouldbe a relevant fact. This Court in a judgment reported as Ravinder SinghBGorkhi v. State of U.P.[18] held as under:

“23. Section 35 of the Evidence Act would be attracted both incivil and criminal proceedings. The Evidence Act does not makeany distinction between a civil proceeding and a criminalproceeding. Unless specifically provided for, in terms of SectionC35 of the Evidence Act, the register maintained in the ordinarycourse of business by a public servant in the discharge of hisofficial duty, or by any other person in performance of a dutyspecially enjoined by the law of the country in which, inter alia,such register is kept would be a relevant fact. Section 35, thus,Drequires the following conditions to be fulfilled before a documentis held to be admissible thereunder: (i) it should be in the nature ofthe entry in any public or official register; (ii) it must state a fact inissue or relevant fact; (iii) entry must be made either by a publicservant in the discharge of his official duty, or by any person inperformance of a duty specially enjoined by the law of the country;Eand (iv) all persons concerned indisputably must have an accessthereto.”

33. In Krishna Pal v. State of U.P.,[19] the learned single judge ofAllahabad High Court held that a family register is a public record interms of the Evidence Act inasmuch as the same is prepared under theFstatutory provisions of Section 15 (xxiii)(e) of U.P. Panchayat Raj Actread with Rule 2, Rule 67, Rules 142 to 144 of the U.P. Panchayat RajRules, 1947. The family register is prepared under the Uttar PradeshPanchayat Raj (Maintenance of Family Registers) Rules, 1970. It is tobe noted that Form(A) also records the date of death of a family member.GThere is yet another Form namely Form (D) which is for registering thedate of birth and death. Both these Forms, therefore, record the date ofdeath of a person and they are prescribed under the Rules. Needless tosay that the Rules are framed by the State Government and the registers 18 (2006) 5 SCC 584H19 2010 SCC OnLine All 695

prescribed for particular purposes are notified under the Rules. Referencemay be made to Section 110 (vii) of the 1947 Act for the said purpose.The Court held as under:- “In my opinion, a presumption has to be drawn in respect of thesaid public document and it cannot be merely disbelieved if theGram Panchayat Adhikari had not been produced to prove it. Thecopy of the family register is a public document and a presumptionas to its genuineness is accepted under Section 79 of the IndianEvidence Act.”

34. In Shiv Patta v. State of U.P.,[20] it was held that the familyregister is maintained in discharge of statutory duties under the U.P.Panchayat Raj (Maintenance of Family Registers) Rules, 1970. Similarly,date of death is maintained in discharge of statutory duty underRegistration of the Birth and Deaths Act, 1969 and it is a public documentwithin the meaning of section 74 of the Evidence Act, 1872. The certifiedcopy of these documents is admissible in evidence under section 77 ofthe Evidence Act and carry presumption of correctness under section79 of the Act. High Court held that in the absence of any evidence toprove that it was incorrect, its correctness is liable to be presumed undersection 79 of the Evidence Act, 1872.

35. Therefore, such Rules are not irrelevant as argued by Mr.Bhargava. This family register does not only contain date of birth butalso keeps the records of any additions in the family, though theevidentiary value needs to be examined in each case.

36. We are unable to approve the broad view taken by the HighCourt in some of the cases that Family Register is not relevant to determineage of the family members. It is a question of fact as to how muchevidentiary value is to be attached to the family register, but to say thatit is entirely not relevant would not be the correct enunciation of law.The register is being maintained in accordance with the rules framedunder a statute. The entries made in the regular course of the affairs ofthe Panchayat would thus be relevant but the extent of such reliancewould be in view of the peculiar facts and circumstances of each case.

37. In terms of Rule 12(3)(iii) of the Rules, birth certificate issuedby corporation or municipal authority or a panchayat is a relevant AB

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Adocument to prove the juvenility. The family register is not a birthcertificate. Therefore, it would not strictly fall within clause (iii) of Rule12(3) of the Rules. Even Section 94(2)(ii) of the 2015 Act contemplatesa birth certificate issued by a panchayat to determine the age.

38. The appellant sought to rely upon juvenility only on the basisBof school leaving record in his application filed under Section 7A of the2000 Act. Such school record is not reliable and seems to be procuredonly to support the plea of juvenility. The appellant has not referred todate of birth certificate in his application as it was obtained subsequently.Needless to say, the plea of juvenility has to be raised in a bonafide andCtruthful manner. If the reliance is on a document to seek juvenility whichis not reliable or dubious in nature, the appellant cannot be treated to bejuvenile keeping in view that the Act is a beneficial legislation. As alsoheld in Babloo Pasi, the provisions of the statute are to be interpretedliberally but the benefit cannot be granted to the appellant who hasapproached the Court with untruthful statement.

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39. Therefore, we find that the appellant has approached the Courtwith unclean hands as the documents relied upon by him are not genuineand trustworthy. Thus, we find that the appellant cannot be given benefitof juvenility. The view taken by the High Court is a possible view in lawand does not call for any interference in the present appeal. Accordingly,Ethe appeal is dismissed.

Divya Pandey(Assisted by : Roopanshi Virang, LCRA)

Appeal dismissed.

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