Manoj @ Monu @ Vishal Chaudhary v. State of Haryana & Anr
HEMANT GUPTA, J.
1. The challenge in the present appeal is to an order passed by the
High 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 conf lict with
law was set aside and the appellant was ordered to stand t rial as an
adult.
2. The facts relevant for the determination of the present appeal
are that the appellant was arrayed as an accused in r espect of an
occurrence on 18.01.2011, wherein the allegation against the appellant
was that he waylaid a car and snatched Rs. 22 lacs from the occupants
MANOJ @ MONU @ VISHAL CHAUDHARY v. STATE OF
HARYANA & ANR.
of the car. The complainant was one of the occupant of the car,
whereas, another occupant - Bhim Singh lost his life on account of
bullet fired on him. During the pendency of the trial, the appellant moved
an application on 07.10.2014 claiming that he was a juvenile as on the
date of the incident, relying upon his school record disclosing his date
of birth as 13.05.1993. The learned Additional Sessions Judge accepted
the plea of the appellant and declared him to be ju venile vide order
dated 09.01.2015. Such order was challenged before the High Court
by way of a revision petition. The revision was allowed on 04.05.2016
and the matter was remitted back to the trial court f or adjudicating
afresh.
3. The learned Additional Sessions Judge, after remand, found
the appellant to be 16 years 8 months and 5 days old on the d ate of
incident as per the Ossification Test report. The age of the appellant as
assessed by the Board of Doctors in the report was 23-24 years . The
High Court however while setting aside the order of the learned Additional
Sessions Judge relied upon the family register prepared under The U.P.
Panchayat Raj (Maintenance of Family Register) Rules, 1970 1 to hold
that the appellant’s plea of juvenility cannot be allowed. Such order is
the subject matter of challenge in the present appeal.
4. The procedure to be followed for determination of a ge is
provided under Rule 12(3)(b) of the Juvenile Justice (Care and Protection
of Children) Rules, 20072, which reads as:
“12. Procedure to be followed in determination of age:
(1) In every case concerning a child or a juvenile in conflict with
law, the court or the Board or as the case may be the Committee
referred to in rule 19 of these rules shall determine the a ge of
such juvenile or child or a juvenile in conflict with law within a
period of thirty days from the date of making of the appl ication
for that purpose.
(2) The Court or the Board or as the case may be the Committee
shall decide the juvenility or otherwise of the juvenile or the child
or as the case may be the juvenile in conflict with law, prima facie
on the basis of physical appearance or documents, if availa ble,
and send him to the observation home or in jail.
1 For short, ‘Family Register Rules’
2 For short, the ‘Rules’
287
(3) In every case concerning a child or juvenile in conflict w ith
law, the age determination inquiry shall be conducted by the court
or the Board or, as the case may be, the Committee by seek ing
evidence 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 than
a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal
authority 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 constituted
Medical Board, which will declare the age of the juvenile or
child. In case exact assessment of the age cannot be done, the
Court or the Board or, as the case may be, the Committee, for
the reasons to be recorded by them, may, if conside red
necessary, give benefit to the child or juvenile by considering
his/her age on lower side within the margin of one year
and, while passing orders in such case shall, after taking into
consideration such evidence as may be available, or the medical
opinion, as the case may be, record a finding in respect of his age
and either of the evidence specified in any of the clauses (a)(i),
(ii), (iii) or in the absence whereof, clause (b) shall be the conclusive
proof of the age as regards such child or the juvenile in conflict
with law. “
5. The Juvenile Justice (Care and Protection of Children) Ac t,
20003 stands repealed by the Juvenile Justice (Care and Protecti on of
Children) Act, 20154. The procedure for determining the age is now part
of Section 94 of 2015 Act which was earlier provide d under
abovementioned Rule 12 of the Rules.
6. Admittedly, there is no matriculation or equivalent certificate as
contemplated under Rule 12(3)(a)(i). The appellant relied upon date of
birth certificate issued by the school first attended. The learned Additional
Sessions Judge on the other hand relied upon report Exhibit A W1/A
3 2000 Act
4 2015 Act
MANOJ @ MONU @ VISHAL CHAUDHARY v. STATE OF
HARYANA & ANR. [HEMANT GUPTA, J.]
rendered by the Board of Doctors on the basis of Ossification Test report
dated 13.05.2016 wherein the age of the appellant was found to be 23 to
24 years. The learned Additional Sessions Judge gave the benef it of
variation and determined the age as 22 years on the date of report and
thus 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 terms
of Rule 12(3)(b) of the Rules, therefore, the appellant was held to be
juvenile in conflict with law. The learned Additional Sessions Judge has
not relied upon the school leaving certificate or the date of birth certificate
relied upon by the appellant.
7. The appellant relies upon three documents such as a Birt h
Certificate; School leaving Certificate and the Report of the Ossification
Test in support of his plea of being a juvenile, whereas the State relies
upon the family register prescribed by the Family Register Rules.
i.Birth Certificate
8. First, we shall examine the truthfulness of the birth certificate
issued by the Government of Uttar Pradesh wherein the date of birth is
mentioned as 13.05.1993. Such date of birth was registered on 19.11.2014
after 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 to
claim benefit under the 2000 Act. The date of birth certificate produced
by the appellant cannot be relied upon as it was obtained after filing of
the application under Section 7A of the Act on 7.10.2014. As per the
birth certificate, the appellant was born at house. Therefore, in terms of
Section 8(1)(a) and 10(1)(i) of the Registration of Births a nd Deaths
Act, 19695, birth had to be reported to the Registrar by the head of the
household or by the nearest relative of the head present in the house or
by the oldest adult male person present. In case birth is reported within
30 days, it shall be registered on payment of such late fee as may be
prescribed. There are other conditions for registration of birth after 30
days as well. The relevant provisions of the Act read thus:
“8. Persons required to register births and deaths .-(1) It
shall be the duty of the persons specified below to give or cause
to be given, either orally or in writing, according to the bes t of
their knowledge and belief, within such time as may be prescribed,
5 Registration Act
289
information to the Registrar of the several particulars required to
be entered in the forms prescribed by the State Government under
sub-section (1) of section 16-
(a) in respect of births and deaths in a house, whether residential
or non-residential, not being any place referred to in clauses
(b) to (e), the head of the house or, in case more than one
household live in the house or the household, and if he is not
present in the house at any time during the period within
which the birth or death has to be reported, the nearest
relative of the head present in the house, and in the absence
of any such person, the oldest adult male person present
therein during the said period;
xxx xxx xxx
10. Duty of certain persons to notify births and deaths and
to certify cause of death.- (1) It shall be the duty of-
(i) the midwife or any other medical or health attendant at a birth
or death,
(ii) the keeper or the owner of a place set apart for the disposal of
dead bodies or any person required by a local authority to be
present at such place, or
(iii) any other person whom the State Government may specify in
this behalf by his designation.
to notify every birth or death or both at which he or she attended
or was present, or which occurred in such areas as m ay be
prescribed, to the Registrar within such time and in such manner
as may be prescribed.”
10. Therefore, the Courts have rightly not relied upon date of
birth certificate which was granted on 19.11.2014 as it was ob tained
after filing of the application and registered many years after t he birth
and not immediately or within the prescribed time period.
ii. School Leaving Certificate
11. The school leaving certificate (Ex. A-3) has been proved by
examining Umesh Kumar, Head Teacher of Adarsh Siksha Sadan, Pinna.
As per the statement of the witness, the school was functioni ng in the
year 1999 in Village Kheri, Dudadhari and was shifted to Village Pinna
MANOJ @ MONU @ VISHAL CHAUDHARY v. STATE OF
HARYANA & ANR. [HEMANT GUPTA, J.]
in the year 2009-2010 where he had been working as Head Teac her
from the year 2000. As per the certificate, the appellant w as a student
of such school from 12.7.1999 till 2.7.2003. In cross-examination, he
admits that the school is a private school and the father of the appellant
has not produced any certificate of the appellant attending the first class.
The appellant was admitted directly in the 2nd standard. He admits that
Exhibit A-1, the admission form, is a loose sheet pre pared in his
handwriting and it does not bear any counter signature of any hi gher
authority. He has not even produced any proof of registration of the
school with the Education Department.
12. The so-called admission form was filled up by him in 1999, so
was the school leaving certificate of the year 2003. A per usal of the
school leaving certificate shows that it was issued on 29.9.14 by Principal
of Adarsh Siksha Sadan, Village Kheri, Dudadhari, though the school
had shifted to Village Pinna in the year 2009-2010. It is unclear and
amusing as to how a certificate be issued by a particular school which
has been shifted to another village. This makes the process of issuance
of certificate doubtful.
13. On the other hand, Ex R-1 is the certificate produced by the
State stating that no school exists by the name of Adarsh Siksha Sadan
in the village Kheri, Dudadhari. Such certificate has b een issued by
Kanishkvir Singh of Primary School, Kheri.
14. The learned Additional Sessions Judge or the High Court have
not relied upon such certificate. We find that such school leaving certificate
is unreliable and that the certificate is only a procured doc ument for
proving juvenility before the court.
iii. Ossification Test Report
15. The Medical Board has opined the age of the appe llant
between 23 to 24 years, when the appellant was examined on 13.05.2016.
This report has been relied upon by the learned Additional Sessions Judge
to allow the plea of juvenility raised by the appellant. However, it is to be
noted that ossification test varies based on individual characteristics and
hence its reliability has to be examined in each case.
16. A textbook of Medical Jurisprudence and Toxicology by Modi,
26th Edition, pg. 221, delineates the factors relevant to determining the
age-
291
(1) Height and Weight- it is opined that progressive increase in
height and weight according to age varies so greatly in individuals
that it cannot be depended upon in estimating age in medico-legal
cases.
(2) Ossification of Bones- this sign is helpful for determining the
age until ossification is completed, for skiagraphy has now made
it possible to determine even in living persons, the exte nt of
ossification, and the union of epiphysis in bones.
17. Hence, it cannot be reasonably expected to formulate a uniform
standard for determination of the age of the union of epiphysis on account
of variations in climatic, dietetic, hereditary and other factors affecting
the people of the different States of India.
18. Furthermore, this Court in a judgment reported as Jyoti
Prakash Rai v. State of Bihar6 held that the medical report determining
the age of a person has never been considered by courts of law as also
by the medical scientist to be conclusive in nature. It was also found that
though the Act is a beneficial legislation but principles of beneficial
legislation are to be applied only for the purpose of interpretation of the
statute and not for arriving at a conclusion as to whether a pe rson is
juvenile or not. The Court held as under:
“12. The 2000 Act is indisputably a beneficial legislation. Principles
of beneficial legislation, however, are to be applied only for the
purpose of interpretation of the statute and not for arriv ing at a
conclusion as to whether a person is juvenile or not. Whether an
offender was a juvenile on the date of commission of the offence
or not is essentially a question of fact which is require d to be
determined on the basis of the materials brought on record by the
parties. In the absence of any evidence which is relevant for the
said purpose as envisaged under Section 35 of the Evidence Act,
the same must be determined keeping in view the factual matrix
involved in each case. For the said purpose, not only relevant
materials are required to be considered, the orders passed by the
court on earlier occasions would also be relevant.
13. A medical report determining the age of a person has ne ver
been considered by the courts of law as also by the medic al
6 (2008) 15 SCC 223
MANOJ @ MONU @ VISHAL CHAUDHARY v. STATE OF
HARYANA & ANR. [HEMANT GUPTA, J.]
scientists to be conclusive in nature. After a certain age it is difficult
to determine the exact age of the person concerned on the basis
of ossification test or other tests. This Court in Vishnu v. State of
Maharashtra [(2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217] opined
: (SCC p. 290, para 20)
“20. It is urged before us by Mr Lalit that the determination of
the age of the prosecutrix by conducting ossification test i s
scientifically proved and, therefore, the opinion of the doctor
that the girl was of 18-19 years of age should be accepted. We
are unable to accept this contention for the reasons that the
expert medical evidence is not binding on the ocular evidence.
The opinion of the Medical Officer is to assist the court as he
is not a witness of fact and the evidence given by the Medical
Officer is really of an advisory character and not binding on
the witness of fact.”
In the aforementioned situation, this Court in a number of judgments
has held that the age determined by the doctors should be given
flexibility of two years on either side.”
19. In a judgment reported as Mukarrab v. State of U.P.7, it was
observed that a blind and mechanical view regarding the age of a person
cannot be adopted solely on the basis of medical opinion by the radiological
examination. It was also held that the purpose of 2000 Act is not to give
shelter to the accused of grave and heinous offences. Relying upon
judgment of this Court reported as Abuzar Hossain v. State of West
Bengal8 and Parag Bhati v. State of Uttar Pradesh 9, it was held as
under:
“27. In a recent judgment, State of M.P. v. Anoop Singh [State
of 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 criteria
for age determination. Following Babloo Pasi [Babloo Pasi v. State
of Jharkhand, (2008) 13 SCC 133 : (2009) 3 SCC (Cri) 266]
and Anoop Singh cases [State of M.P. v. Anoop Singh, (2015) 7
SCC 773 : (2015) 4 SCC (Cri) 208] , we hold that ossification test
cannot be regarded as conclusive when it comes to ascertaining
7 (2017) 2 SCC 210
8 (2012) 10 SCC 489
9 (2016) 12 SCC 744
293
the age of a person. More so, the appellants herein have certainly
crossed the age of thirty years which is an important factor to be
taken into account as age cannot be determined with precision. In
fact in the medical report of the appellants, it is stated that there
was no indication for dental x-rays since both the accused were
beyond 25 years of age.”
20. This Court in a judgment reported as Babloo Pasi v. State of
Jharkhand and Anr.10 held that it is neither feasible nor desirable to lay
down an abstract formula to determine the age of a person. It was held
as under:
“22. It is well settled that it is neither feasible nor desirable to lay
down an abstract formula to determine the age of a pers on. The
date of birth is to be determined on the basis of material on record
and on appreciation of evidence adduced by the parties. The
medical evidence as to the age of a person, though a very useful
guiding factor, is not conclusive and has to be considered along
with other cogent evidence.”
21. In Ramdeo Chauhan v. State of Assam11, it was held that X-
Ray Ossification Test may provide a surer basis for determining the age
of an individual than the opinion of a medical expert but it can by no
means be so infallible and accurate test so as to indicate the exact date
of birth of the person concerned. It was held as under:
“21. Relying upon a judgment of this Court in Jaya Mala v. Home
Secy., Govt. of J&K [(1982) 2 SCC 538 : 1982 SCC (Cri) 502 :
AIR 1982 SC 1297 : 1982 Cri LJ 1777] the learned defence counsel
submitted that the Court can take notice that the marginal error in
age ascertained by radiological examination is two years on either
side. The aforesaid case is of no help to the accused inasmuch as
in that case the Court was dealing with the age of a detenu taken
in preventive custody and was not determining the extent o f
sentence to be awarded upon conviction of an offence. Otherwise
also even if the observations made in the aforesaid judgment are
taken note of, it does not help the accused in any case. The doctor
has opined the age of the accused to be admittedly more than 20
years and less than 25 years. The statement of the doctor is no
10 (2008) 13 SCC 133
11 (2001) 5 SCC 714
MANOJ @ MONU @ VISHAL CHAUDHARY v. STATE OF
HARYANA & ANR. [HEMANT GUPTA, J.]
more than an opinion, the court has to base its conclusions upon
all the facts and circumstances disclosed on examining of the
physical features of the person whose age is in quest ion, in
conjunction with such oral testimony as may be available. An X-
ray ossification test may provide a surer basis for determining the
age of an individual than the opinion of a medical expert but it can
by no means be so infallible and accurate a test as to indicate the
exact date of birth of the person concerned. Too much of reliance
cannot be placed upon textbooks, on medical jurisprudence and
toxicology while determining the age of an accused. In this vast
country with varied latitudes, heights, environment, vegetation and
nutrition, the height and weight cannot be expected to be uniform.”
22. It is pertinent to note here that Dr. Rajeev Chauhan, Member
of the Medical Board in his cross-examination admitted that a man with
the age of 30 to 32 years would also find the same fusion as found in a
man who has crossed the age of 22 years. Keeping in view the said
statement, we find that the conclusion of the Medical Board tha t the
appellant was 23 to 24 years cannot be said to be conclusive or helpful
to determine the age of the appellant to be less than 18 years on the date
of commission of offence.
iv. Family Register
23. The Family Register Rules prescribes preparation of a Family
Register in the State of Uttar Pradesh which contains family-wise names
and particulars of all persons ordinarily residing in the village pertaining
to the Gaon Sabha. Such Rules have been framed under Section 110 of
the U.P Panchayat Raj Act, 1947. The High Court has relied on s uch
certificate to hold that the appellant is not juvenile. Such Rules read as
under:
“1. (1) These rules may be called the U.P. Panchaya t Raj
(Maintenance of Family Registers) Rules, 1970.
2. Form and preparation of family register.- A family register in
form A shall be prepared containing family-wise the names and
particulars of all persons ordinarily residing in the village pertaining
to the Gaon Sabha. Ordinarily one page shall be allotted to each
family in the register. There shall be a separate section in the
register for families belonging to the Scheduled Castes. The register
shall be prepared in Hindi in Devanagri scrip.
295
3. General conditions for registration in the register.- Every person
who has been ordinarily resident within the area of the Gaon Sabha
shall be entitled to be registered in the family register.
Explanation.- A person shall be deemed to be ordinarily resident
in a village if he has been ordinarily residing in such village or is in
possession of a dwelling house therein ready for occupation.
4. Quarterly entries in the family register.- At the beginni ng of
each quarter commencing from April in each year, the Secretary
of a Gaon Sabha shall make necessary changes in the fami ly
register consequent upon births and deaths, if any occurring in the
previous quarter in each family. Such changes shall be laid before
the next meeting of the Gaon Panchayat for information.
5. Correction of any existing entry.- The Assistant Development
Officer (Panchayat) may on an application made to him in this
behalf order the correction of any existing entry in the famil y
register and the Secretary of the Gaon Sabha shall then corre ct
the Register accordingly.
6. Inclusion of names in the Register.- (1) Any person whose
name is not included in the family register may apply to t he
Assistant Development Officer (Panchayat) for the inclusi on of
his name therein.
(2) The Assistant Development Officer (Panchayat) shal l, if
satisfied, after such enquiry as he thinks fit that the applicant is
entitled to be registered in the Register, direct tha t the name of
the applicant be included therein and the Secretary of the Gaon
Sabha shall include the name accordingly.
6A Any person aggrieved by an order made under Rule 5 or Rule
6 may, within 30 days from the date of such order prefer and
appeal to the Sub-Divisional Officer whose decision shall be final.
7. Custody and preservation of the register.-(1) The Secretary of
the Gaon Sabha shall be responsible for the safe custody of the
family register.
(2) Every person shall have a right to inspect the Register and to
get attested copy of any entry or extract therefrom in such manner
and on payment of such fees, if any, as may be specified in Rule
73 of the U.P. Panchayat Raj Rules.
MANOJ @ MONU @ VISHAL CHAUDHARY v. STATE OF
HARYANA & ANR. [HEMANT GUPTA, J.]
FORM A
(See RULE 2)
xxx xxx xxx
Note.- In the remarks column the number and date of the order, if
any, by which any name is added or struck off should be given
alongwith the signature of the person making the entry.”
24. A perusal of the Rules shows that one page is allotted to each
family and that any change in the family consequent upon the births and
deaths is required to be incorporated on such page. The chang es are
also required to be laid before the next meeting of Gram Pa nchayat.
Thus, it is evident that such Rules are statutorily framed in pursuance of
an Act. The entries in the register are required to be made by the officials
of the Gram Panchayat as part of their official duty. Nee raj Kumar,
Gram Panchayat Officer of Block Barwala was examined wh erein he
stated that the entries in the register are made on the basis of information
given by the family members, though he could not depose as to who had
made these entries.
25. Jagpal Singh, father of the appellant, had appeared as a witness
to depose that the appellant was born on 13.5.1993. He deposed that
after the birth of the appellant, a daughter was born on 15. 4.1996 and
thereafter a son on 21.9.1997. The High Court relied upo n Family
Register (Exhibit R-4) produced by Neeraj Kumar, RW-2, wherein the
year of birth of the appellant was mentioned as 1990 and 1996 as the
year of birth of daughter and 1998 as the year of birth of anothe r son.
The years of birth of the brother and sister of the appell ant are almost
the same as deposed by the father. The High Court found that such
document cannot be excluded from consideration for the reason as such
document has been prepared in the ordinary course of busines s of the
Gram Panchayat.
26. Mr. Bhargava, learned Senior Counsel for the app ellant
contends that the family register cannot be made basis of det ermining
the age of the juvenile under the provisions of the Act a nd the Rules
framed thereunder. To support such contention, reliance was placed on
the judgments of the Allahabad High Court such as Hare Ram
Chowdhary v. State of U.P.12; Anil Kumar v. Suchita13; Bahadur v.
12 1989 SCC OnLine ALL 438
13 2009 SCC OnLine ALL 671
297
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 to
the Full Bench as to whether the decision of that Court in Pramod
Kumar Manglik v. Smt. Sadhana Rani 17 is correctly decided. Since
no issue has been finally directed, therefore any observati ons in the
reference order are not relevant.
28. In Anil Kumar, the dispute related to an election petition
regarding date of birth of a candidate named Suchita. She claimed herself
to be born on 03.07.1984 as against the date of birth entry in the school
records. The family register was relied upon to prove the date of death
of her mother. The learned Single Judge Bench held that the family
register is only a document showing the names of the members of the
family and they are ordinarily resident of a village concerned. It cannot
be conclusive proof either of the date of birth or of death of any family
member mentioned therein.
29. In Bahadur, the accused relied upon entries in the family
register to declare him as juvenile, relying upon U.P. J uvenile Justice
(Care and Protection of Children) Rules, 2004. The High Court rejected
the family register on the ground that the entry produced was on the
basis of register prepared in the year 2000 which was prepare d on the
basis of original register of 1970, but the original register of the year
1970 was not produced.
30. In Abdul Hakeem Pardhan, the Division Bench of the High
Court held that entries made in the family register were never made in
the regular course of official duties. The family register may be an
evidence to show that the person is living in the family but not an evidence
for ascertaining age.
31. In Ram Murti Devi, the entry in the family register was altered
by the office of District Magistrate. The said issue is no t arising for
consideration before this Court. The parties were referred to seek remedy
in terms of Rule 6A of the Family Register Rules.
14 2009 SCC OnLine ALL 1757
15 2015 SCC OnLine ALL 5201
16 2021 SCC OnLine ALL 260
17 1989 SCC OnLine ALL 125
MANOJ @ MONU @ VISHAL CHAUDHARY v. STATE OF
HARYANA & ANR. [HEMANT GUPTA, J.]
32. Section 35 of the Evidence Act, 1872 is attracted both in civil
and criminal proceedings. It contemplates that a register maintained in
the ordinary course of business by a public servant in disc harge of his
official duty or by any other person in performance of a duty specially
enjoined by the law of the country in which such register is kept would
be a relevant fact. This Court in a judgment reported as Ravinder Singh
Gorkhi v. State of U.P.18 held as under:
“23. 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 cr iminal
proceeding. Unless specifically provided for, in terms of Section
35 of the Evidence Act, the register maintained in the ordina ry
course of business by a public servant in the discharge of hi s
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) 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 per son in
performance of a duty specially enjoined by the law of the country;
and (iv) all persons concerned indisputably must have an access
thereto.”
33. In Krishna Pal v. State of U.P.,19 the learned single judge of
Allahabad High Court held that a family register is a public record in
terms of the Evidence Act inasmuch as the same is prepared under the
statutory provisions of Section 15 (xxiii)(e) of U.P. Panchayat Raj Act
read with Rule 2, Rule 67, Rules 142 to 144 of the U.P. Panchayat Raj
Rules, 1947. The family register is prepared under the Utta r Pradesh
Panchayat Raj (Maintenance of Family Registers) Rules, 1970. It is to
be noted that Form(A) also records the date of death of a family member.
There is yet another Form namely Form (D) which is for registering the
date of birth and death. Both these Forms, therefore, record the date of
death of a person and they are prescribed under the Rules. Needless to
say that the Rules are framed by the State Government and the registers
18 (2006) 5 SCC 584
19 2010 SCC OnLine All 695
299
prescribed for particular purposes are notified under the Rules. Reference
may 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 the
said public document and it cannot be merely disbelieved i f the
Gram Panchayat Adhikari had not been produced to prove it. The
copy of the family register is a public document and a presumption
as to its genuineness is accepted under Section 79 of the Indian
Evidence Act.”
34. In Shiv Patta v. State of U.P .,20 it was held that the family
register is maintained in discharge of statutory duties u nder the U.P.
Panchayat Raj (Maintenance of Family Registers) Rules, 1970. Similarly,
date of death is maintained in discharge of statuto ry duty under
Registration of the Birth and Deaths Act, 1969 and it is a public document
within the meaning of section 74 of the Evidence Act, 1872. The certified
copy of these documents is admissible in evidence under section 77 of
the Evidence Act and carry presumption of correctness under s ection
79 of the Act. High Court held that in the absence of any evi dence to
prove that it was incorrect, its correctness is liable to be presumed under
section 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 bi rth but
also keeps the records of any additions in the famil y, though the
evidentiary value needs to be examined in each case.
36. We are unable to approve the broad view taken by the Hig h
Court in some of the cases that Family Register is not relevant to determine
age of the family members. It is a question of fact as to how much
evidentiary value is to be attached to the family register, but to say that
it is entirely not relevant would not be the correct enunci ation of law.
The register is being maintained in accordance with the ru les framed
under a statute. The entries made in the regular course of the affairs of
the Panchayat would thus be relevant but the extent of such reliance
would 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 issued
by corporation or municipal authority or a panchayat is a relevant
20 2013 SCC OnLine All 14202
MANOJ @ MONU @ VISHAL CHAUDHARY v. STATE OF
HARYANA & ANR. [HEMANT GUPTA, J.]
document to prove the juvenility. The family register is not a birth
certificate. Therefore, it would not strictly fall within clause (iii) of Rule
12(3) of the Rules. Even Section 94(2)(ii) of the 2015 Act contemplates
a birth certificate issued by a panchayat to determine the age.
38. The appellant sought to rely upon juvenility only on the basis
of school leaving record in his application filed under Section 7A of the
2000 Act. Such school record is not reliable and seems to be procured
only to support the plea of juvenility. The appellant has not referred to
date 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 and
truthful manner. If the reliance is on a document to seek juvenility which
is not reliable or dubious in nature, the appellant cannot be treated to be
juvenile keeping in view that the Act is a beneficial legislation. As also
held in Babloo Pasi, the provisions of the statute are to be interpreted
liberally but the benefit cannot be granted to the appellant who has
approached the Court with untruthful statement.
39. Therefore, we find that the appellant has approached the Court
with unclean hands as the documents relied upon by him are not genuine
and trustworthy. Thus, we find that the appellant cannot be given benefit
of juvenility. The view taken by the High Court is a possible view in law
and does not call for any interference in the present appeal. Accordingly,
the appeal is dismissed.
Divya Pandey Appeal dismissed.
(Assisted by : Roopanshi Virang, LCRA)