# Gulab Singh & Ors v. State of U.P

- **Citation:** (2023) 6 ILRA 741
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-10
- **Case number:** Criminal Appeal No. 836 of 1983
- **Bench:** Siddhartha Varma, Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gulab-singh-ors-v-state-of-u-p-50351
- **Pages:** 9

## Headnote

Law
-
appeal
against
conviction - Indian Penal Code, 1860 -
Sections 302/149 , 307/149 , 148 & 147 -
Juvenile Justice (Care and Protection) of
Children Act, 2015 - Section 94(2) -
Presumption and determination of age,
Section
24
(1)
-
Removal
of
disqualification on the findings of an
offence,
Section
18(1)(g)
-
Orders
regarding child found to be in conflict with
law
,

Juvenile
Justice
(Care
and
Protection of Children) Rules, 2007 - Rule
12(3)(b) - Procedure to be followed in
determination of age , The U.P. Panchayat
Raj Act, 1947 - Section 110 - Powers of
State Government to make Rules, The U.P.
Panchayat Raj (Maintenance of Family
Registers) Rules, 1970 - Rules 5 , 6 ,73 ,
Indian Evidence Act, 1872 - Section 35 -
Relevancy of entry in public record made
in performance of duty.

(B)
Criminal
Law
-
no
substantial
difference between the Juvenile Justice
(Care and Protection of Children) Act 2005
and
the
Juvenile
Justice
(Care
and
Protection of Children) Act 2000 - Act of
2015 focuses on crime committed by
children aged 16-18 years - Board's
determination of age is conclusive proof of
a child or juvenile in conflict with law -
age recorded by the committee or Board
for the purposes of the Act of 2015 is
considered the true age.(Para - 35)

Judgment and order passed in appeal -
challenged before Supreme Court in Special
Leave to Appeal - court declined to interfere
with conviction order - but issued a direction for
the High Court to consider and pass orders on
the application of Applicant no.10 - who
claimed to be juvenile on the incident date -
Finding
recorded
by Board
-
Competent
Authority signed family register cuttings - date
of birth of appellant no. 10 was changed from
28.05.1965 to 03.06.1965 - difference of five
days - no benefit is given to the appellant no.

## Text

6 All. Gulab Singh & Ors. Vs. State of U.P.
741
of five years rigorous imprisonment under
the alleged offence. Accused-appellant
Indra Bahadur Singh shall be taken into
custody to serve out the remaining sentence
accordingly. The sentence in any other
sections, if any, shall run concurrently. The
accused-appellant shall be entitled to get
benefit of Section 428 Cr.P.C.

35. Certify the judgement along with
the lower court record to the court
concerned for information and necessary
compliance.
----------
(2023) 6 ILRA 741
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED:ALLAHABAD 10.05.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE MANISH KUMAR NIGAM, J.

Criminal Appeal No. 836 of 1983

Gulab Singh & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri R.B. Sahai, Sri Aditya Yadav, Sri Anil
Kumar Singh, Sri G.S. Chaturvedi, Sri
Kamal Krishna, Sri Lav Srivastava, Sri
Mukesh Kumar Pandey, Sri R.B.Singh, Sri
Ranjit Singh,Sri Shyam Srivastava, Sri
Shyam Sunder Misra, Sri Sunder Mishra, Sri
Surendra Singh, Sri Sushil Kumar Dwivedi,
Sri V.P. Srivastava, Sri Vikas Bhatnagar, Sri
Virendra Kumar Yadav, Sri Vishesh Kumar

Counsel for the Opposite Partiy:
DGA, A.G.A., Sri Ramesh Sinha

(A)
Criminal
Law
-
appeal
against
conviction - Indian Penal Code, 1860 -
Sections 302/149 , 307/149 , 148 & 147 -
Juvenile Justice (Care and Protection) of
Children Act, 2015 - Section 94(2) -
Presumption and determination of age,
Section
24
(1)
-
Removal
of
disqualification on the findings of an
offence,
Section
18(1)(g)
-
Orders
regarding child found to be in conflict with
law
,

Juvenile
Justice
(Care
and
Protection of Children) Rules, 2007 - Rule
12(3)(b) - Procedure to be followed in
determination of age , The U.P. Panchayat
Raj Act, 1947 - Section 110 - Powers of
State Government to make Rules, The U.P.
Panchayat Raj (Maintenance of Family
Registers) Rules, 1970 - Rules 5 , 6 ,73 ,
Indian Evidence Act, 1872 - Section 35 -
Relevancy of entry in public record made
in performance of duty.

(B)
Criminal
Law
-
no
substantial
difference between the Juvenile Justice
(Care and Protection of Children) Act 2005
and
the
Juvenile
Justice
(Care
and
Protection of Children) Act 2000 - Act of
2015 focuses on crime committed by
children aged 16-18 years - Board's
determination of age is conclusive proof of
a child or juvenile in conflict with law -
age recorded by the committee or Board
for the purposes of the Act of 2015 is
considered the true age.(Para - 35)

Judgment and order passed in appeal -
challenged before Supreme Court in Special
Leave to Appeal - court declined to interfere
with conviction order - but issued a direction for
the High Court to consider and pass orders on
the application of Applicant no.10 - who
claimed to be juvenile on the incident date -
Finding
recorded
by Board
-
Competent
Authority signed family register cuttings - date
of birth of appellant no. 10 was changed from
28.05.1965 to 03.06.1965 - difference of five
days - no benefit is given to the appellant no.
10. (Para -14, 31)

HELD:-Board finds appellant no. 10 was a
juvenile at the time of commission of the
offence i.e. 05.12.1982 , based on cogent
evidence. Sentenced to 3 years in prison, but
entitled to the Act of 2015 benefit due to his
juvenile status. Sending to a special home for
three years is unjust due to appellant's over 3
year sentence as per Section 18(1)(g) of 2015
742 INDIAN LAW REPORTS ALLAHABAD SERIES
Act.
Applicant
no.
10
will
not
face
disqualification due to his conviction and
sentence under Section 24 of 2015 Act. (Para -
36, 37, 38, 40)

Miscellaneous application allowed. (E-7)

List of Cases cited:

Manoj Vs St. of Har., (2022) 6 SCC 187

(Delivered by Hon'ble Hon'ble Manish
Kumar Nigam, J.)

1. Heard learned counsel for the
appellants, learned A.G.A. for the State.

2. This appeal was filed by appellants
Gulab Singh (A1), Shiv Narain Singh (A2),
Munnu Singh (A3), Nanka (A4), Basdeo
(A5), Chhotku (A6), Girish (A7), Kishore
(A8), Jhoori Singh alias Chandra Bhushan
Singh (A9) and Kalloo @ Avadesh (A10)
against the judgment and order dated
05.04.1983 passed by IIIrd Additional
Sessions Judge, Fatehpur in S.T. No. 119 of
1982 (Gulab Singh & others Vs. State of
U.P.), by which the appellants had been
convicted
and
sentenced
to
life
imprisonment under Section 302 read with
149
I.P.C.,
seven
years
rigorous
imprisonment under Section 307/149 I.P.C.
Jhoori Singh alias Chandra Bhushan Singh
(A9) and Kalloo @ Avadesh (A10) were
further convicted and sentenced to two
years rigorous imprisonment under Section
148 I.P.C. Shiv Narain Singh (A2), Munnu
Singh (A3), Nanka (A4), Basdeo (A5),
Chhotku (A6), Girish (A7) and Kishore
(A8) were also convicted and sentenced to
one year rigorous imprisonment u/s 147
I.P.C.

3. Briefly stated the facts of the case
are that on the basis of a written report (Ex.
Ka-1), F.I.R. lodged by PW-1 informant
Brij Bhushan at Police Station Ghazipur,
District Fatehpur on 05.12.1981 at about
9:30 A.M. regarding an incident which had
taken place on 05.12.1981 at about 8:15
A.M., Case Crime No. 941 of 1981, under
Section 147, 149, 302 & 307 I.P.C. against
the appellants as well as co-accused
Raghubir and Babu Singh Yadav was
initiated. In the aforesaid incident, Chandra
Bhushan and Ban Bihari died and Ram
Kripal, Kunj Bihari and Brij Bhushan had
received injuries.

4. After investigation, the police
submitted a charge sheet against all the
accused persons before the Chief Judicial
Magistrate, Fatehpur.

5. Since, the offences mentioned in
the charge sheet were triable exclusively by
the court of Sessions, the Chief Judicial
Magistrate committed the case of all the
accused to the court of Sessions Judge,
Fatehupur where the case was registered as
S.T. No. 119 of 1982 (Gulab Singh and
others v. State of U.P.), thereafter the case
was transferred to the court of IIIrd
Additional Sessions Judge, Fatehpur, who
on the basis of material collected in the
investigation
and
after
hearing
the
prosecution as well as the accused on the
point of charge, framed charges under
Section 302/149 and 307/149 against all the
appellants.

6. Apart from the aforesaid charges, a
charge under Section 148 I.P.C. was
framed against Jhoori Singh @ Chandra
Bhushan (A9) and Kallu @ Avdhesh
(A10). Charge under Section 147 I.P.C.
was framed against Sri Narayan Singh
(A2), Munnu Singh (A3), Nanka (A4),
Basudev (A5), Chhotuku (A6), Girish (A7)
and Kishore (a-8). The accused appellants
6 All. Gulab Singh & Ors. Vs. State of U.P.
743
denied the charges framed against them and
claimed trial.

7. The trial court after considering the
evidence brought on record by the
prosecution and also the material brought
on record convicted and sentenced all the
appellants to life imprisonment under
Section 302 read with Section 149 I.P.C.
Also a punishment of 7 years rigorous
imprisonment under Section 307/149 I.P.C.
was awarded. Jhoori Singh (A9), Kallu @
Avdhesh (A10), were further convicted and
sentenced to 2 years rigorous imprisonment
under Section 148 I.P.C. Shiv Narayan
Singh (A2), Munnu (A3), Nanka (A4),
Basudev (A5), Chhotku (A6), Girish (A7)
and Kishore (A8) were convicted for a year
of rigorous imprisonment under Section
147 I.P.C.

9. The present appeal was filed against
the judgment and order dated 05.04.1983
passed by Additional Sessions Judge. It is to
be noted that all the accused persons were on
bail during trial.

10. After filing of the appeal, the
appellants were granted bail by this Court by
order dated 06.04.1983.

11. This Court after hearing the counsel
for the appellants as well as learned A.G.A. for
the State vide its judgment and order dated
16.08.2018 confirmed the judgment of the trial
court with regard to Gulab Singh (A1) and
Kallu @ Avdhesh (A10). The appeal of Shiv
Naryan (A2), (A3), (A4), (A5), (A6) and (A7)
was allowed and they were acquitted of all the
charges framed against them by this Court.
The appeal was allowed in part and dismissed
qua Gulab Singh (A1).

12. By an order dated 23.01.2020
earlier
order
dated
16.08.2018
was
corrected and name of Kallu @ Avdhesh
(A10) was added in the first line of third
last
paragraph
of
the
order
dated
16.08.2018 and following paragraph was
added before second last paragraph of the
judgment:

"The appellant Kallu @ Avadesh
(A10) is on bail. His bail bonds are
cancelled and sureties discharged. Chief
Judicial Magistrate, Fatehpur, is directed
to take him in custody and send him to jail
for serving out the remaining part of his
sentence."

13. After the judgment and order
dated
16.08.2018,
Criminal
Misc.
Application
No.
1
of
2019
dated
06.12.2019 was filed on behalf of Kallu @
Avdhesh (A10) with a prayer that the
appellant no. 10 Kallu @ Avdhesh be
declared juvenile and the order of sentence
against Kallu @ Avdhesh be set-aside.

14. Judgment and order dated
16.08.2018 passed in this appeal was
challenged before the Hon'ble Supreme
Court in Special Leave to Appeal (Cri) No.
3506-3507 of 2020 (Kallu @ Avdhesh v.
State of U.P.). Vide its order dated
31.07.2022, the Hon'ble Supreme Court
declined to interfere with the order of
conviction. However, it issued a direction,
directing the High Court to consider and
pass orders on the application of the Kallu
@ Avdhesh (A-10) claiming to be juvenile
on the date of incident.

15. After the order of Hon'ble
Supreme Court dated 21.08.2020, Criminal
Misc. Application No. 1 of 2019 dated
06.12.2019 under Section 9(2) of Juvenile
Justice (Care and Protection) of Children
Act, 2015 (hereinafter referred to as the
"Act of 2015") on behalf of appellant no.
744 INDIAN LAW REPORTS ALLAHABAD SERIES
10 Kallu @ Avdhesh was placed before
this Court.

16. By the order dated 27.09.2021, the
question of determining the juvenility of
appellant no. 10 Kallu @ Avdhesh was
referred to the Juvenile Justice Board,
Fatehpur (hereinafter referred to as "The
Board") to consider and dispose of the
matter in accordance with law within two
months from the date of presentation of
certified
copy
of
the
order
dated
27.09.2021.

17. In compliance of the order dated
27.09.2021, the Board vide its order dated
06.01.2022, by a 2:1 decision, held that the
appellant no. 10 Kallu @ Avdhesh was a
juvenile on the date of the incident i.e. on
05.12.1981.

18. After the order dated 06.01.2022
was passed by the Board, the same was
placed on record of this appeal. A Counter
affidavit dated 02.03.2022 was filed by the
State wherein it has been claimed on the
basis of a certificate issued by Principal of
the Uccha Prathmik Vidyalaya Gamhari,
Bahua, Fatehpur and on the date of birth
certificate issued by Principal of Jagat Inter
College, Ghazipur, Fatehpur that the date
of birth of appellant no. 10 Kallu @
Avdhesh is 05.03.1962 and that the
appellant no. 10 was not a juvenile on the
date of the incident.

19. A rejoinder affidavit has been
filed thereafter on behalf of appellant no.
10 Kallu @ Avdhesh wherein it has been
specifically stated that the appellant no. 10
Kallu @ Avdhesh is an illiterate person and
had never gone to any school. It has been
further stated in the rejoinder affidavit that
no such evidence was filed on behalf of
State when the proceedings were going on
before the Board. It has been further stated
in the rejoinder affidavit that neither the
State nor the informant had filed any appeal
against the order dated 06.01.2022 passed
by the Board, meaning thereby that these
issues could not be raised now at this stage.

20. Today when the matter was taken
up, Application No. 1 of 2019 was pressed
by the counsel for the appellant. It has been
contended by the learned counsel for the
appellant that in pursuance to the order
passed by this Court, the Board had
undertaken the exercise to determine the
age of the appellant no. 10 Kallu @
Avdhesh. On enquiry it had been held by
the Board by a majority of 2:1 that at the
time of incident, appellant no. 10 Kallu @
Avdhesh was a minor. It has been further
contended by the learned counsel for the
appellant that the order dated 06.01.2022
passed by the Board became final as no
appeal
was
preferred
either
by
the
informant or by the State against the order
of the Board.

21. Counsel for the appellant
submitted that as the appellant no. 10 has
been held to be a juvenile on the date of
incident, then in view of the provisions of
Act of 2015, appellant no. 10 is to be
released forthwith as he had remained in
jail for more than 3 years and even
otherwise at present, the appellant no. 10
was aged about 57 years and therefore,
cannot be sent to a juvenile home.

22. Per contra, relying upon the
counter affidavit filed by the State, learned
A.G.A. stated that as per the certificates
annexed along with counter affidavit, the
appellant no. 10, was not a juvenile at the
time of incident and the report of the Board
was incorrect. It has been further contended
that the inquiry made by the Board was not
6 All. Gulab Singh & Ors. Vs. State of U.P.
745
in accordance with law and the appellant
no. 10 cannot be given the benefit of the
provisions of the Act of 2015. It has been
further contended by the learned A.G.A.
that the Board erroneously relied upon the
entries made in the family register. It has
been further contended that there were
interpolation in the entries made in the
family register.

23. In reply to the argument of
learned A.G.A., learned counsel for the
appellant submitted that certificate annexed
along with counter affidavit cannot be
relied upon. Firstly as only the photo copies
of the certificates had been filed along with
the counter affidavit and secondly, the
aforesaid certificates were never filed by
the State before the Board when the Board
was enquiring into the matter of Juvenility
of the appellant no. 10.

24. It has been further contended that
against the order of the Board, no appeal
had been preferred by the State or
informant and the order passed by the
Board became final. The inquiry conducted
by the Board was in accordance with law
and cannot be faulted.

25. After consider the respective
submissions made by the learned counsel
for the appellant and perusal of the record,
we are of the view that the contention of
the learned A.G.A. for the State that entries
made in the family register cannot be relied
upon, is not correct.

"Family Register

26. 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. Such Rules
read as under:

"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 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 script.

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 beginning of each
quarter commencing from April in each
year, the Secretary of a Gaon Sabha shall
make necessary changes in the family
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.
746 INDIAN LAW REPORTS ALLAHABAD SERIES

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
family register and the Secretary of the
Gaon Sabha shall then correct 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 the Assistant Development Officer
(Panchayat) for the inclusion of his name
therein.

(2) The Assistant Development
Officer (Panchayat) shall, if satisfied, after
such enquiry as he thinks fit that the
applicant is entitled to be registered in the
Register, direct that the name of the
applicant be included therein and the
Secretary of the Gaon Sabha shall include
the name accordingly.

6-A. 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 SubDivisional
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.

FORM A
(See Rule 2)
***

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 along with the signature of
the person making the entry."

27. A perusal of the above Rules
indicate 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 changes are also required to be laid
before the next meeting of the Gram
Panchayat. 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.

28. This Court in the case of Manoj v.
State of Haryana, reported in (2022) 6
SCC 187, observed in regard to the Family
Register referred to above as under"-

"39. We are unable to approve
the broad view taken by the High 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 enunciation of law. The register is
being maintained in accordance with the
rules 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."

(Emphasis supplied)
6 All. Gulab Singh & Ors. Vs. State of U.P.
747

"23.
The
procedure
to
be
followed for the determination of age is
provided under Rule 12(3)(b) of Juvenile
Justice (Care and Protection of Children)
Rules, 2007 (for short 2007 Rules).

"12. Procedure to be followed in
determination of age.-(3) In every case
concerning a child or juvenile in conflict
with law, the age determination inquiry
shall be conducted by the court or the
Board or, as the case may be, the
Committee
by
seeking
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
considered 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."

29. The Act of 2000 stands repealed
by the Act of 2015. The procedure for
determining the age is now part of Section
94 of the Act of 2015 which was earlier
provided under the abovementioned Rule
12 of the Rules.

30. Section 94 (2) of Juvenile Justice
(Care and Protection of Children ) Act,
2015 is quoted as under :-

94.Presumption
and
determination of age - (1) Where, it is
obvious to the Committee or the Board,
based on the appearance of the person
brought before it under any of the
provisions of this Act (other than for the
purpose of giving evidence) that the said
person is a child, the Committee or the
Board shall record such observation
stating the age of the child as nearly as
may be and proceed with the inquiry under
section 14 or section 36, as the case may
be, without waiting for further confirmation
of the age.

(2) In case, the Committee or the
Board has reasonable grounds for doubt
regarding whether the person brought
before it is a child or not, the Committee or
the Board, as the case may be, shall
undertake
the
process
of
age
determination, by seeking evidence by
obtaining -

(i) the date of birth certificate
from the school, or the matriculation or
equivalent certificate from the concerned
748 INDIAN LAW REPORTS ALLAHABAD SERIES
examination Board, if available; and in the
absence thereof;

(ii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;

(iii) and only in the absence of (i)
and (ii) above, age shall be determined by
an ossification test or any other latest
medical age determination test conducted
on the orders of the Committee or the
Board:

Provided such age determination
test conducted on the order of the
Committee or the Board shall be completed
within fifteen days from the date of such
order.

(3) The age recorded by the
Committee or the Board to be the age of
person so brought before it shall, for the
purpose of this Act, be deemed to be the
true age of that person."

31. We have perused the report of the
Board. The Board has recorded a finding
that cuttings made in the family register
have been signed by the Competent
Authority. It has been further held by the
Board that the date of birth of the appellant
no. 10 has been changed from 28.05.1965
to 03.06.1965 and there is only a difference
of five days from which it is clear that no
benefit is given to the appellant no. 10. The
relevant extract of the report of Board is
quoted as under:

"पत्राविी में उपिब्ध साक्ष्य एांव ग्राम पांचायत
अडधकारी द्वारा हस्ताक्षररत व प्रमाडित पररवार रडजस्टर की नकि
का पररशीिन डकया गया। पररवार रडजस्टर के क्रमाांक 207 के
सामने अांडकत डववरि व नामों को काट कर उसके नीचे पुनः नामों
एांव अन्य डववरिों का अांकन डकया गया है और कडटांग पर हस्ताक्षर
बने हैं डजन्हें साक्षी प्रकाश चांद्र ग्राम पांचायत अडधकारी द्वारा सक्षम
अडधकारी के हस्ताक्षर होना कहा गया है। कडटांग में अपचारी A के
नाम के आगे जन्मडतडथ 28.05.1965 अांडकत है डकांतु डकटांग के
उपराांत पुनः नीचे अांडकत डकए गए डववरि में A अपचारी की जन्म
डतडथ 03.06.1965 अांडकत है डजसमें मात्र 05 डदनों का अांतर
है डजससे ये प्रतीत नहीं होता की उक्त कडटांग डकसी तरह से अपचारी
को िाभ पहुुँचाने की डनयत से की गई है। पररवार रडजस्टर जो ग्राम
पांचायत अडधकारी द्वारा प्रमाडित करके दाडखि डकया है उसमें A
के पाररवाररक जनों का नाम पहिे घरेिू अांडकत डकया गया है डफर
उसी कडटांग में उनके सही नाम डिखे गये डफर पूरी सम्पूिष डववरि
को काट कर उसके नीचे सही नाम के साथ डववरि अांडकत डकया
गया। इससे यह प्रतीत होता है डक उक्त कडटांग सही नाम अांडकत डकये
जाने के पररपेक्ष्य में की गई है और उसमें सक्षम अडधकारी के
हस्ताक्षर भी बने हैं।"

32. Section 35 of the Indian Evidence
Act in this regard is relevant and the same
is reproduced below:

"35. Relevancy of entry in public
record made in performance of duty: An
entry in any public or other official book,
register or [record or an electronic record],
stating a fact in in issue or relevant fact,
and made by a public servant in the
discharge of his official duty, or by any
other person in performance of a duty
specially enjoined by the law of the country
in which such book, register, or [record or
an electronic record] is kept, is person in
performance of a duty specially enjoined
by the law of the country in which such
book, register, or [record or an electronic
record] is kept, is itself a relevant fact"

33. The family register prepared in
discharge of official duty and therefore, in
absence of any evidence, to contrary the
same would be a relevant evidence.

34. So far as the certificates filed along
with counter affidavit are concerned, they do
not inspire confidence as the documents are
certificates issued by the Principal of some
Institution. We find that the Appellant no. 10
6 All. Surat Singh & Ors. Vs. State of U.P.
749
had never attended any school. Further
aforesaid documents were not filed by the State
or informant before the Board when the enquiry
was being conducted by the Board as to the
juvenility of the Appellant no. 10. The State or
the informant has also not challenged the order
passed by the Board declaring the Appellant no.
10 to be a juvenile and the said order has
attained finality.

35. We have already held in case of Ram
Nayan and four others v. State of U.P. passed in
Criminal Appeal No. 4499 of 2015 decided on
12.04.2023 that there is no substantial
difference in the provisions of the Juvenile
Justice (Care and Protection of Children) Act
2005 (hereinafter referred to as "Act of 2005")
and the provisions of the Juvenile Justice (Care
and Protection of Children) Act, 2000
(hereinafter referred as "Act of 2000") except
that the Act of 2015 take cares of crime
committed by a children in the age group of 1618 years. Under Rule 12(3)(b) of 2007 Rules,
the determination of age by the Board shall be
conclusive proof of the age as regards a child or
a juvenile in conflict with law. Similarly under
Section 94(2) of Act of 2015, age recorded by
the committee or the Board to be the age of a
person so brought before it, for the purpose of
Act of 2015 would be deemed to be the true age
of that person.

36. Considering the report of the Board
we are of the opinion that categorical finding
recorded by the competent juvenile justice
Board, which is based on cogent evidence that
the appellant no. 10 was a juvenile at the time of
commission of the offence i.e. 05.12.1982.

37. In the present case, as is evident from
the record and submissions made by the learned
counsel appearing for the respective parties, the
Appellant no. 10 has already undergone about
three years imprisonment. As we have already
held that the appellant no. 10 was juvenile in
conflict with law at the time of occurrence i.e.
05.12.1981, the appellant no. 10 is entitled to
the benefit of the Act of 2015.

38. In view of the Section 18(1)(g) of
2015 Act, the most stringent action which could
have been taken against applicant/appellant no.
10, was of sending the applicant to a special
home for a period of three years. As the
appellant has undergone the sentence for more
than three years, therefore now it will be unjust
to send the applicant to Juvenile Justice Board.

39. Therefore, we allow the application
and direct that applicant/appellant no. 10 Kallo
alias Avdesh, convicted and sentence in S.T.
No. 119 of 1982 (Gulab Singh and others v.
State of U.P.) decided by IIIrd Additional
Sessions Judge, Fatehpur shall be forthwith set
at liberty provided he is not required to be
detained under any other order of competent
court.

40. In view of sub Section (1) of Section
24 of the Act of 2015, the applicant/appellant
no. 10 Kallo alias Avdhesh Shall not incur any
disqualification because of his conviction and
period of sentence undergone by him.

41. The miscellaneous application is
allowed in the above term.
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(2023) 6 ILRA 749
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED:ALLAHABAD 25.05.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE MANISH KUMAR NIGAM, J.

Criminal Appeal No. 1343 of 1999

Surat Singh ...Appellant
Versus
State of U.P. ...Opposite Party