Under Section 35 of the Indian Evidence Act, a register maintained in terms of a statute or by a statutory authority in regular course of business would be a relevant fact. Had such a vital evidence been produced, it would have clinched the issue. The respondent did not choose to do so.
In the aforementioned backdrop the evidences brought on record are required to be considered. The Admission Register or a Transfer Certificate issued by a Primary School do not satisfy the requirements of Section 35 of the Indian Evidence Act. There is no reliable evidence on record to show that the date of birth was recorded in the school register on the basis of the statement of any responsible person.
In Brij Mohan Singh vs. Priya Brat Narain Sinha and others [AIR 1965 SC 282], this Court, inter alia, observed that in actual life it often happens that persons give false age of the boy at the time of his admission to a school so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed.
The entry of date of birth made in school admission register in terms of Section 35 of the Evidence Act should be considered from that perspective.
However, in Birad Mal Singhvi (supra), it was held :
"...To render a document admissible under
Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact, and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in
performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of material on which the age was recorded..."
In Chittaranjan Das vs. Durgapore Project Limited & Ors. [99 CWN 897], it was held
"Thus, in absence of the primary material
on the basis whereof the age was recorded, and particularly in view of the conflicting evidence available, it is not possible to accept the
contention of Mr. Roy that the date of birth of the petitioner as recorded in the said
certificate would prevail over the letter of the Board."
The said principles were reiterated in Coal India Limited vs. Arun Kumar Sinha & Others [1999 (1) SLR 151].
Supreme Court of India
Sushil Kumar vs Rakesh Kumar on 16 October, 2003
