Raghubar Dayal, J.:— Dasi Ram and his son, Chandra Gupta, were convicted under the Child Marriage Restraint Act and sentenced to different sums of fine. They appealed to the Sessions Judge, Shahjahanpur. The learned Sessions Judge set aside the conviction and sentence and directed a fresh trial. Dasi Ram and Chandra Gupta have filed this revision, which is referred to this Bench, as a single Judge was of opinion that it involved the decision of an important question.
2. The learned Sessions Judge observed in the judgment:
“Dev Dat, complainant, filed a copy of the birth register of the village chaukidar to prove that the date of Mt. Ganga Dei's birth was 13-11-1932, Neither he nor his other witnesses had any personal knowledge of the age of the girl. Dev Dat stated that by appearance the girl seemed to be about 12½ years old at the time of her marriage. This statement can have little evidentiary value. Dev Dat is not an expert in judging ages. In A.I.R 1945 Pat. 4891, it was held that the chaukidar's birth register is not admissible in evidence under Section 35 of the Evidence Act……. In the absence of any admissible prosecution evidence to prove that the age of the girl was less than 14 years, it would not be safe to convict the appellant.”
3. In view of this opinion the learned Sessions Judge would have been justified in acquitting the appellant before him. He, however, ordered a retrial as he, thought that the complainant might have produced other evidence to prove the age had the learned Magistrate not admitted the extract of the birth register in evidence. It does not appear that the learned Magistrate had expressed his opinion before the conclusion of the case that he would rely on the extract from the birth register and that, therefore, it was futile for the complainant to lead any further evidence. Moreover, any further evidence which the complainant might have led would have been probably oral. Witnesses can only depose their estimate of the girls age. In the words of the learned Sessions Judge, such witnesses cannot be experts in judging ages. It is open to argument how far the opinion of a lay man about age is admissible. It may be that probably the learned Sessions Judge had in his mind the possibility of the complainant's examining a doctor. A doctor too estimates ages and it is open to the Court to believe him or not. In this view of the matter, we are of opinion that the order of retrial was not a proper order. We are, however, of opinion that the learned Sessions Judge misdirected himself on the admissibility of the extract from the birth register and that therefore his order under revision is not a proper order.
4. The learned Sessions Judge does not appear to be correct in describing the birth register extract to be an extract from the birth register of the village chaukidar. We have seen this extract. It is a true copy. The very fact that it is a true copy indicates that it is probably not an extract from the chaukidar's birth register as that register is kept by the chaukidar and, so far as we know, copies are not issued from it. The detailed columns of this extract also indicate that it is not a copy from the chaukidar's register, which is a small book. The probability is as urged by the learned Government Advocate, that this is an extract from the register maintained at the thana and in which entries are made from the entries in the chaukidar's register at the time when the chaukidar visits the thana once a fortnight ordinarily. Such a register is a public document. Entries are made in it by an employee of the police department. Entries in this register are admissible under Section 35 of the Evidence Act.
5. The learned counsel for the applicant has argued that entries in the thana register of births and deaths are not admissible under Section 35 of the Evidence Act, unless it is proved as to who wrote those entries and what his source of information was. In support of his contention he has referred to some cases, the last of which is reported in A.I.R 1922 ALL. 5102. That according to him, was the latest case of the Allahabad High Court he could discover from the digest. We can only say that his digest seems to be too old and any way is not up to date, as we have found a number of cases of this Court subsequent to the year 1922. He chiefly relied on the case reported in 19 I.C 5283. It was observed there:
“In our opinion the register has not been properly proved and the entries in it are not admissible in evidence. It was produced by a municipal clerk who was new to the work. The entries were not in his handwriting and he could not say who wrote them.
Neither could he say who was responsible for keeping up the register or on whose information the entries were made or who was responsible for checking their correctness. It is not shown that the entries in question were made by any public servant in the discharge of his official duties. We agree with the opinion expressed in 10 I.C 7134, a very similar case.”
6. It is presumed in his argument by the learned counsel for the applicants that the register referred to was a public document and that the clerk who probably wrote it was a public servant. The quotation shows that it was not proved that the entries were made by any public servant. In the circumstances the register could not have been admissible in evidence under Section 35 of the Evidence Act. There are two later cases of this Court which deal with entries in a municipal register. They are A.I.R 1936 ALL. 2185 and A.I.R 1938 ALL. 2426. It was held in both these cases that under Section 35 of the Evidence Act, a municipal register of births and deaths is admissible in evidence as it is kept by a public servant in the discharge of his duty. In A.I.R 1938 ALL. 242 it was observed at p. 245:
“In the present case the original was summoned, and we are of the opinion that the copy produced in this case is admissible in evidence. This was the view taken by this Court in 22 A.L.J 6907 and 1936 A.L.J 404. The entries in municipal records and police records stand on a different footing from the entries in a chaukidar's book, and the cases relied on by learned counsel for Khelari Das, namely 20 A.L.J 601 : A.I.R 1922 All. 510 and 19 I.C 528, ars distinguishable.”
7. The case reported in 46 ALL. 637, is a complete answer to the contention for the applicants. It was held in that case that a daily register of deaths maintained at a police station in pursuance of regulations made under Section 12 of the Police Act, 1861, is an official book, register, or record made by a public servant in the discharge of his official duty within the meaning of Section 35 of the Evidence Act, 1872, and entries therein are legally admissible as evidence.
8. The earliest case referred to by the learned counsel was the case reported in 14, O.C 68. It was observed in that case:
“The entry ingestion was admittedly not made by the chaukidar and there is no evidence that it was made by any other public servant or that it was the duty of any other public servant to make it. Even if it be assumed that the register is a public or any other official book within the meaning of Section 35 of the Evidence Act, the register must be rejected on the ground that it was not shown that the entry in question was made by any public servant in the discharge of his official duty.”
9. This case did not hold that when an entry is made in a public register by a public servant it is necessary that public servant should come in Court and prove that he made the entry and state what his source of information was. If this had been the law, the whole object of Section 35 of the Evidence Act, would be frustrated. Doubts were expressed about this decision in the case reported in 12 A.L.J 9458. Referring to this case it was observed at p. 947:
“It is there laid down that, although a chaukidar's register may be a public or official book, within the meaning of Section 35 of the Evidence Act, it cannot be put in evidence unless the entries are shown to have been made by the chaukidar himself.”
10. The case reported in A.I.R 1919 Oudh 4269, held that an entry made in the register of deaths maintained under Para. 367 of the Police Regulations is an official entry made by a public servant in the discharge of his official duty and as such is admissible in evidence under Section 85 of the Evidence Act. It referred to the earlier Oudh cases. This case was followed in A.I.R 1919 Oudh 7510. wherein it was held that under Section 35 of the Evidence Act, it is not enough to prove that the chaukidar's register is an official book, but it is also necessary to prove that any entry relied on in it was either made by a public servant in the discharge of his official duty or made by some other person in performance of a duty specially enjoined by the law of the country.
11. In A.I.R 1934 Oudh 16711, entries in a municipal register were held admissible in evidence.
12. The Madras High Court held in 41 Mad. 2612, that the entries in a village register of births and deaths maintained under the orders of the Board of Revenue were admissible in evidence under Section 35 of the Evidence Act.
13. The Calcutta High Court held in 46 Cal. 15213, that a register of deaths kept by police officers at thanas under the rules made by the Local Government is a ‘public document’ within the meaning of Section 74 of the Evidence Act. Under the provisions of S. 114 of that Act, the Court is entitled to presume that an entry made in such register was properly made and a certified copy of such entry is admissible in evidence.
14. The Patna case, reported in A.I.R 1945 Pat. 489, relied on by the learned Sessions Judge, held that in the absence of reliable evidence as to who made the entry as to the death of a particular person in hathchittas kept by a chaukidar and in what circumstances, it cannot be said that the conditions laid down in S. 35 have been fulfilled. The circumstances of that case were peculiar. The chaukidar examined in Court was unable to say who had made the entry and on what date the particular person had died. The witness who was produced to depose that he had made the entry denied that he had made it and it appeared that the entry was not actually in his handwriting. It was observed in the body of the judgment at page 490, col. 2:
“Therefore, for the application of Section 35 of the Evidence Act, one must know who has made the entry and in what circumstances. If the chaukidar or some other person makes the entry in the discharge of his official duty then one of the essential conditions mentioned in Section 35 of the Evidence Act, is fulfilled.”
15. Reference was made to the case reported in A.I.R 1933 Pat. 47314, which held that such an entry is admissible in evidence. In that case the entry was not made by the chaukidar himself but was made at his instance by a defadar. Thus, this Patna case too does not help the applicants if the entry is made in the thana register of births and deaths or if the entry is made in the chaukidar's register by the chaukidar himself.
16. We are, therefore, of opinion that the register of births from which an extract has been filed appears to be the register of births maintained at the thana under para 322, Police Regulations, 1942 Edition, and that entries in this register are admissible in evidence under-Section 35 of the Evidence Act.
17. In view of what we have said above, it is clear that the learned Sessions Judge misdirected himself on law.
18. We are, therefore, of opinion that the revision should be allowed, the order of the Court below be set aside and that the case be sent back to the Court below with the direction that the appeal be reheard on merits and we order accordingly.
19. The Court below is free to call for evidence, if it considers this necessary, about the fact whether this extract is from the birth register maintained at the thana or is from the chaukidars's book. We may note that if this extract be from the chaukidar's book and the entry be not made by the chaukidar himself this extract will be inadmissible in evidence.
20. Order accordingly.