Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 761 (CAL)

Biplab Hansda @ Dutta v. STATE OF WEST BENGAL

2010-07-07

KALIDAS MUKHERJEE

body2010
JUDGMENT Kalidas Mukherjee, J. 1. THIS is an application under Section 397 read with Section 401 of the Code of Criminal Procedure assailing the order dated 09.7.2008 passed by learned Additional Sessions Judge, Fast Track Court (5th Court), Malda in Sessions case No. 243 of 2007. 2. MALDA P.S. Case No. 114/05 dated 03.6.2005 has been initiated on the basis of a complaint lodged by the victim girl with the I.C. MALDA P.S. It has been stated in the complaint that the complainant, a student of class VIII, developed love affairs with the petitioner who was studying in Class XII in the year 2005 and on 28.5.2005 while the complainant was returning home from the school, she met the petitioner and his mother on the way. The mother of the petitioner left the place asking them to come to her house. After the departure of the mother of the petitioner they started gossiping and reached a nearby field. The petitioner with the promise of marriage committed rape upon the victim. The said promise subsequently did not materialise inspite of holding village salish. The mother of the petitioner denied such proposal. For the said reasons the complaint was lodged. After investigation the charge sheet was submitted. On the date of framing of charge the accused/petitioner filed an application with a prayer to consider the aspect that the petitioner was, admittedly, a juvenile on the date of the alleged offence and, as such, the petitioner was required to be tried by Juvenile Court. The accused/petitioner filed documents to prove his minority. The learned Additional Sessions Judge vide order dated 09.7.2008 rejected the application filed by the petitioner holding that accused Biplab Hansda was not juvenile on 28.5.2005, that is, the date of occurrence. Being aggrieved by the said order passed by the learned Additional Sessions Judge, the accused/petitioner has filed the instant application. 3. THE learned Counsel appearing for the petitioner submits that the petitioner was first admitted in St. Rita Primary School and, subsequently, admitted in Badnagra High School. It is submitted that as per the Admission Register of St. Rita Primary School the date of birth of the petitioner was 21.7.1988, but, subsequently when he was admitted at Badnagra High School on the basis of transfer certificate issued by St. Rita Primary School, his date of birth was noted as 15.6.1986. It is submitted that as per the Admission Register of St. Rita Primary School the date of birth of the petitioner was 21.7.1988, but, subsequently when he was admitted at Badnagra High School on the basis of transfer certificate issued by St. Rita Primary School, his date of birth was noted as 15.6.1986. THE learned Counsel further submits that the petitioner produced the copy of the Admit Card issued by Board of Secondary Education, West Bengal, wherefrom it would appear that the date of birth is 21.7.1988. It is submitted that the alleged incident occurred on 28.5.2005 and on that date the petitioner was a juvenile. THE learned Counsel for the petitioner has referred to and cited the decision reported in 2002 C.Cr.L.R. (SC) 344 [Rajinder Chandra Vs. State of Chhattisgarh and Anr.] 4. THE learned Counsel appearing on behalf of the State submits that the learned Magistrate held that the date of birth as noted in the Admission Register of St. Rita Primary School had no basis and relied on the date of birth as noted in Badnagra High School. THE learned Counsel further submits that the learned Magistrate ought to have taken recourse to the ossification test. P.W. 1 is the Secretary of St. Rita Primary School who produced the Admission Register and stated that the date of birth of Biplab Hansda was not mentioned in the Admission Register. But, he has stated that the age of Biplab Hansda was recorded as five years at the time of admission in the year 1988. In the cross-examination he has stated that the fathers name of Biplab Hansda has not been noted in the Admission Register; it has not been mentioned on the basis of whose statement the age of Biplab Hansda was entered as five years; it was not mentioned in the Register who accompanied Biplab Hansda at the time of admission; the name of the guardian has not been mentioned. P.W. 1 has further stated in cross- examination that at present Sister Jyoti is the Head Mistress of the School and she has issued a certificate marked as Ext. A. 5. P.W. 2 is the Head Master of Badnagra High School. He has stated that as per the Admission Register Biplab Hansda was admitted in the School on 24.5.1996 on being transferred from St. A. 5. P.W. 2 is the Head Master of Badnagra High School. He has stated that as per the Admission Register Biplab Hansda was admitted in the School on 24.5.1996 on being transferred from St. Rita Primary School; on the basis of the said transfer certificate the date of birth has been recorded as 15.6.1986. In the cross-examination he has stated that there is overwriting in column No. 21 and it does not bear any initial; in the column of the fathers name, the name of Doli Hansda has been mentioned; he has not brought the transfer certificate issued by St. Rita Primary School. 6. THE accused/petitioner has produced the Admit Card issued by the Board of Secondary Education. It appears therefrom that he appeared in the Madhyamik Examination in the year 2004 and his date of birth was recorded as 21.7.1988. From the evidence as to the date of birth of the accused/petitioner, it appears that the same is conflicting. THE accused was first admitted in St. Rita Primary School and the Admission Register was produced. But, it appears from the evidence of P.W. 1 that the date of birth was not noted therein. THE age was recorded as five years. From the evidence of P.W. 2 it appears that the date of birth was recorded in the Admission Register of Badnagra High School as 15.6.1986. P.W. 2 has further stated that this date of birth was recorded on the basis of the transfer certificate issued by the St. Rita Primary School. But, the said transfer certificate was not produced before the Court. THE learned Court below held that the entry in the Admission Register of St. Rita Primary School had no basis. It is, therefore, clear that if the entries in the Admission Register of St. Rita Primary School have no basis, the entry in the Badnagra High School cannot also be relied upon, in as much as, the entry in the Admission Register of Badnagra High School was based on the transfer certificate issued by St. Rita Primary School which was not produced before the Court. THE learned Counsel for the petitioner has referred to a decision reported in 2002 C.Cr.L.R. SC 344 (Supra). It has been held by the Apex Court in para 5 of the said decision as follows:- "5. Rita Primary School which was not produced before the Court. THE learned Counsel for the petitioner has referred to a decision reported in 2002 C.Cr.L.R. SC 344 (Supra). It has been held by the Apex Court in para 5 of the said decision as follows:- "5. It is true that the age of the accused is just on the border of sixteen years and on the date of the offence and his arrest he was less than 16 years by a few months only. In Arnit Das V. State of Bihar, (2000)5 SCC 488 this Court has, on a review of judicial opinion, held that while dealing with the question of determination of the age of the accused for the purpose of finding out whether he is a juvenile or not, a hypertechnical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the said evidence, the Court should lean in favour of holding the accused to be a juvenile in borderline cases. THE law, so laid down by this Court, squarely applies to the facts of the present case. The Admit Card issued by the Board of Secondary Education shows that the date of birth of the accused petitioner is 21.7.1988. Since the evidence of P.W. 1 and P.W. 2 is contradictory, it would be reasonable and safe to rely on the date of birth as noted in the Admit Card issued by the Board of Secondary Education. There is no reason to disbelieve the said Admit Card. The learned Court below did not consider the date of birth as noted in the Admit Card issued by the Board. I find that the finding of the learned Judge of the Court below is not based on sound reasoning. The learned Court below committed material irregularity necessitating thereby interference in Revision. The learned Judge ought to have relied upon the date of birth of the accused as noted in the Admit Card issued by the Board. I find that the date of birth of the accused/petitioner is 21.7.1988. The order impugned is set aside. The learned Judge will proceed according to law treating the date of birth of accused/petitioner as 21.7.1988. The Revisional Application is allowed. 7. I find that the date of birth of the accused/petitioner is 21.7.1988. The order impugned is set aside. The learned Judge will proceed according to law treating the date of birth of accused/petitioner as 21.7.1988. The Revisional Application is allowed. 7. LET a copy of this judgment be sent to the learned Court below immediately. 8. URGENT Photostat certified copy, if applied for, be handed over to the parties as early as possible.