02 August 2020

School certificate or matriculation certificate be given the highest preference in determining age of accused or victim

Date of birth controversy - different date of birth mentioned in different documents i.e. school register, aadhar card, anganwadi kendra report, affidavit, voter list/ID etc. - which document has to be relied in determining the age of victim or accused?

    Since the central issue, at this stage, in the present case revolves around the question of determination of age of the victim based on divergent ages as indicated by three documents. Such a determination will naturally have a bearing on the culpability of the Petitioner herein in respect of the offences as outlined in the FIR. It is also noticed that such an issue, indicating conflicting date of birth recurringly comes up before this Court. It may not be out of place here to mention that the role of the State in such legislations at hand is like parens patriae. There seems to be a lot of divergence as to the age of a minor person or child which spread across 11 legislations from 14 years of age to 25 years depending on the purpose of the legislation. However, in so far as the Juvenile Justice Act and the POCSO Act are concerned, the age of majority is fixed at above 18 years. Therefore, an exercise must be undertaken to bring a quietus to such an issue in light of some leading precedents of the Supreme Court of India.[Para No.9]

    In Brij Mohan Singh v. Priya Brat Narain Sinha the Hon'ble Supreme Court held that the reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it in the discharge of his official duty, the probability of its being truly and correctly recorded is high. On the other hand, it was held that the same probability is reduced to a minimum when the public servant himself is illiterate and has to depend on somebody else to make the entry. In such case the evidentiary value of the document in question under Section 35 of the Evidence Act varies according to the maker thereof. In the case of Umesh Chandra v. State of Rajasthan it was held that oral evidence in respect of age has no value which could necessarily be proved only through documentary evidence. The court herein disbelieved a horoscope and relied upon the records maintained by the school. In Dayachand v. Sahib Singh the Hon'ble Court held that although the tendency of many to have lesser age recorded in school is well known and can be easily appreciated but cannot be accepted as the same was clearly in conflict with the medical evidence. Thus, in the said case medical evidence which observes the physical developments especially with regard to the bone structure formation opine a certain age which trumped the records in the school register. In the case of Vishnu v. State of Maharashtra the Hon'ble Apex Court has chosen to believe the date of birth as indicated in the birth register maintained by the Municipal Corporation and disregarded the date of birth as recorded by the school register. The reasoning to do so has been that the best evidence with regard to the age of the child is that of the parents of the child. It has further held that credence-worthy documentary evidence will prevail over expert witness of a doctor and even ossification test. In the case of Birad Mal Singhvi v. Anand Purohit it was has held that the entries regarding the date of birth contained in the school's register or Secondary School Examination have no probative value and that a person such as the parents of the child who have special knowledge in terms of Section 35 of the Evidence Act, with regard to the age of the child need to give evidence to that effect, in order to prove those documents which reflect the age. In the absence thereof such documents would be of no evidentiary value. In the case of Pradeep Kumar v. State of U.P. the court has relied upon the School certificate as well as the age indicated by medical examination as both of them were consistent and indicated the same age. In the case of Bhoop Ram v. State of U.P. the court disbelieved the medical opinion and instead chose to rely on the date of birth as occurring in the School certificate since the said document had not been disproved by any party and gave the accused the benefit of doubt. In the case of Bhola Bhagat v. State of Bihar the court held that since the object of such laws being socially oriented legislation and intended to be beneficial in nature. An obligation is cast on the court in such cases where a plea is raised with regard to the juvenility of the age of the accused to direct an enquiry to be held and seek a report in that regard. It further suggested that subordinate courts must be issued an administrative direction that whenever such a plea with regard to juvenility is raised. There being a doubt on the said question, it is incumbent upon the court to conduct an enquiry by giving the parties an opportunity to establish the respective claims in order to return a concrete finding with regard to the age. In Ramdeo Chauhan v. State of Assam it was held that in case the school register was not maintained by a public servant in discharge of his official duty, then such an entry would not have a binding evidentiary value. It also held that although medical opinion could not be said to be definitive but in cases where the court was grouping in the dark some amount of guidance could be sought from such an opinion and it could not be discarded altogether. In Ravinder Singh Gorkhi v. State of U.P. it was held that when a particular statute requires the age to be determined in a particular manner, no artificial division could be made between civil and criminal cases and a uniform standard of proof must be followed. The court must endeavor to strike a balance keeping in mind that a benevolent approach needs to be taken. In Babloo Pasi v. State of Jharkhand the court disbelieved the age reflecting in the voters list as no evidence was produced as to the materials based on which such an age had been entered into the said list. In Jitendra Ram v. State of Jharkhand dealing with the issue of juvenility under the Juvenile Justice Act it was held that in the absence of any concrete documentary evidence, it was incumbent upon the court to follow the procedure prescribed under the statute and obtain a medical opinion with regard to the age. In Jyoti Prakash Rai v. State of Bihar the court held that since the School certificate and the horoscope were found to be forged, the court had no other option but to rely on the medical opinion. However, while doing so, the court observed that medical opinion could not be taken to be conclusive but a margin of two years on either side had to be taken and that a better approach would be to take the average of the medical opinion issued by different medical opinions. In Pawan v. State of Uttaranchal the court was disinclined to believe the school leaving certificate which had been obtained after the conviction. In Hari Ram v. State of Rajasthan the court took note of the various provisions of the Juvenile Justice Act and opined that in case of any ambiguity with regard to the age, Rule 12 framed under the Act had to be taken recourse to in order to arrive at the age. In Raju v. State of Haryana the court directed that the age determination be done as per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the rules framed thereunder. In Shah Nawaz v. State of U.P. the court held that Rule 12 categorically provides that the medical opinion from the medical board should only be sought only when the matriculation certificate or school certificate or a certificate issued by a corporation are not available. That being the provision under the rules the court ought not to have overlooked the same especially when such a document was available on record and was credence worthy. In Om Prakash v. State of Rajasthan in an exception the Hon'ble Apex Court found the school certificate to be unreliable and went by the medical opinion as the same was based on scientific medical tests like ossification and radiological examination in order to determine the age of the juvenile. In Ashwani Kumar Saxena v. State of M.P. the court relied on the admission register of the school as clinching evidence. The reasoning that the parents would have given a wrong date of birth was taken to be a specious plea and disbelieved. It was also held that the issue of the juvenility could be raised at any point in time or at any stage of the proceedings. A similar view was taken in the case of Kulai Ibrahim v. State.[Para No.10]

    In Sunil v. State of Haryana in the absence of school leaving certificate and the basis on which the age was recorded in the school register not having been produced the court went by the age as opined by the report of the dentist who had conducted the examination. In State of M.P. v. Munna the court held that the X-ray report of the ossification test could not be believed as the doctor who conducted the examination and opined on the age was never examined and also noticing that in the absence of any other documentary evidence the age was not successfully established by the prosecution.[Para No.11]

    In Jarnail Singh v. State of Haryana, the court for the first time took a view that although Rule 12 deals with a child in conflict with law but by using the judicial tool of reading is held that the same could be extended to determine the age of the victim also. It is a landmark decision in the sense that for the first time the court took note that although there was the legislation in place to determine the age of the accused there was a vacuum with regard to the mode of determination of the age of the victim. Thus by necessary judicial construction it has been held authoritative leave that the same rule, i.e., Rule 12, would be applicable to determine the age of the victim as well. In State of M.P. v. Anoop Singh the court held that minor discrepancies existing amongst two documents is irrelevant as long as the other evidences on record point in a certain direction. In Mahadeo v. State of Maharashtra the court relied on a series of documents which indicated that the age was in a certain range based on the documents which were on record and credence worthy[Para No.12]

    In Sri Ganesh v. State of T.N. the court held that in the face of relevant documentary evidence there could be no medical examination to a certain the age and any such direction passed by any court would be unwarranted. The court while taking such a view discouraged because from directing any medical examination if there was credence worthy documentary evidence on record given the scheme of the Juvenile Justice Act after its amendment. In Mukarrab v. State of U.P. the court observed that in the absence of a birth certificate issued by the authority concerned the determination of age becomes a very difficult task providing a lot of discretion to the judges to pick and choose evidence. It was held that if two views were possible, the court should lean in favour of taking a beneficial approach. It further summarized the issue stating that:

School certificate or matriculation certificate be given the highest preference in determining age of accused or victim
(i) That a claim of juvenility may be raised at any stage and even after the final disposal of the case. It does not matter whether such a claim has been raised before the courts below;
(ii) For making a claim with regard to juvenility the claimant must produce a material which may prima facie satisfy the court that an enquiry into the question of age determination is necessary and the burden lies on the party claiming a certain age;
(iii) Although it is difficult to state as to what documents would be sufficient to raise a presumption of juvenility/age but the documents referred to in Rules 12 shall definitely be sufficient for the prima facie satisfaction of the Court about the age necessitating a further enquiry as contemplated under Rule 7. The credibility of documents like school leaving certificate or board certificate would depend on the facts and circumstances of each case. Even documents like school leaving certificate, Mark sheet, medical report et cetera could be treated to be sufficient for directing an enquiry and verification of the age if such documents inspire the confidence of the court;
(iv) An affidavit of the claimant or the parents or siblings or any relative in support of age shall not be sufficient justifying an enquiry to determine the age in the absence of any other documents; and
(v) Whenever a plea of juvenility is raised the court should always be guided by the objective of the Juvenile Justice Act and be alive to the position that the beneficent provisions must not be defeated by a hyper-technical approach which would disentitle persons to get the benefit of the legislation. The presumption that parents tend to decrease the age of the child while making an entry in the school admission role needs to be discouraged and such a plea ought not to be given much value.[Para No.13]

    From a conjoint reading of the aforesaid the principles as laid down by the Hon'ble Supreme Court dealing with a myriad factual backdrop although no straightjacket formula can be laid down. However, some common a thread that flows through with regard to the issue of age determination can be summarized as follows:-
(a) Medical opinion based medical examination like observing the bone structure etc or tests like the ossification test or radiological examination can at best be stated to be indicative of the range of the age. Such medical opinion leaves a margin of about 2 years on either side.
(b) Reliance on medical opinion normally the last option that should be adopted by courts and only in the absence of any other documentary evidence.
(c) Credible documentary evidence will trump medical opinion
(d) The age determination of the accused as well as the victim can be done under Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 in case of such an enquiry is directed by a competent court
(e) A reading of the aforesaid judgements indicates that by and large, the Hon'ble Supreme Court has been inclined to rely on the school certificate or matriculation certificate.
(f) Now, the procedure to arrive at the age in case of conflicting documents on record has be statutorily provided under Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The said provision provides for a preferential regime where the school certificate or matriculation certificate has been accorded the highest preference. The same also creates a presumption as to the age by way of a deeming fiction.[Para No.14]

Orissa High Court

Debabrata Sahoo @ Mithun
State Of Odisha

Decided on 30/07/2020

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