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2011 DIGILAW 83 (GAU)

Binoy Biswas v. State of Assam

2011-02-01

MADAN B.LOKUR, MAIBAM B.K.SINGH

body2011
JUDGMENT Madan B. Lokur, J. 1. The Appellant is aggrieved by a conviction and sentence dated 15-12-2004 passed by the Adhoc Addl. Dist & Sessions Judge, Nagaon in Sessions Case No. 78(N)/2003. 2. The Appellant was accused of having committed a murder on 22-9-2002. The allegation is that he had killed his father by striking him with a lathi on the head while he was sleeping. The learned Addl. Sessions Judge convicted and sentenced him to imprisonment for life. 3. Feeling aggrieved the Appellant preferred this appeal before us. 4. While we were going through the records with the assistance of learned Counsel for the parties, it appeared to us that the Appellant was a minor when the incident is alleged to have occurred. Under these circumstances we required the Gauhati Medical College to examine the Appellant to determine his approximate age. 5. The learned Public Prosecutor has placed before us a report of the Gauhati Medical College which has been signed by a Board consisting of the Professor and Head of the Department of Forensic Medicine and two others members from the Department of Forensic Medicine. As per their report, on physical investigation and on radiological investigation of the Appellant it appears that the Appellant is above 25 years of age on 24-1-2011 when the examination was conducted. 6. The incident, as mentioned above, is of 22-9-2002, which is about eight years ago. On that basis it is quite clear that the Appellant was about 17/18 years of age when the incident is alleged to have occurred. 7. We may draw attention to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 promulgated by the Central Govt. This Rule deals with the procedure to be followed in determining the age of a child or a juvenile who is in conflict with law. Rule 12(3) provides that evidence regarding the age of a minor shall be a matriculation or equivalent certificate, if available and in the absence thereof a date of birth certificate from the school first attended and in the absence thereof a birth certificate given by a corporation or a municipal authority or a Panchayat. If neither of these documents is available, then the opinion of a duly constituted Medical Board should be obtained. If neither of these documents is available, then the opinion of a duly constituted Medical Board should be obtained. If the Medical Board is unable to give an exact assessment of the age, then the age of the juvenile be kept on the lower side within a margin of one year subject to any orders that may be passed by the Child Welfare Committee. 8. Insofar as the present appeal is concerned there is no documentary evidence available on record regarding the age of the Appellant. However, as per the medical examination, it appears that he was between 17-18 years of age. If his age is reduced by one year as required by Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 the age of the Appellant as on the date of commission of the alleged crime would be between 16-17 years. On the basis of the above it must be held that the Appellant was a juvenile when the alleged offence was committed. 9. We are told, unfortunately, by learned Counsel for the Appellant that the Appellant has been in custody since 23-9-2002, that is, for more than eight years. 10. Under Section 15(1)(g) of the Juvenile Justice (Care and Protection of Children) Act, 2000 the maximum period of detention in respect of a juvenile shall not exceed three years. The Appellant has already undergone more than double the maximum period of sentence prescribed by law in his case. 11. Since the Appellant was a juvenile when he had committed the alleged offence, he ought to have been tried under the provisions of the Juvenile Justice (Care and Protection of Children) Act but since that has not been done we have no option but to set aside his trial and conviction keeping in mind that he has already put in eight years in custody. 12. Under the circumstances, we allow the appeal and set aside the conviction and sentence of the Appellant. 13. We direct the Registrar (Judicial) of the Court to circulate a copy of this decision to the District Judges under the jurisdiction of this Court who shall in turn circulate a copy to the Judicial Officers under their jurisdiction with a direction to take note of the provisions of the Juvenile Justice (Care and Protection of Children) Act. 13. We direct the Registrar (Judicial) of the Court to circulate a copy of this decision to the District Judges under the jurisdiction of this Court who shall in turn circulate a copy to the Judicial Officers under their jurisdiction with a direction to take note of the provisions of the Juvenile Justice (Care and Protection of Children) Act. All Judicial Officers should ensure that such errors do not occur in future and, in case of any doubt, the age of an accused should be ascertained at the earliest. We are constrained to make this order in view of the fact that in this case a considerable period in the life of the Appellant has been wasted and he has been compelled to spend time in jail, meant for adults, even though he was a juvenile. 14. Since the Appellant has been in unlawful custody for a considerable period of time we direct the State to compensate him to the extent of Rs.10,000/- at the time of his release. 15. The medical report is kept as a part of the record. 16. Send down the Trial Court records immediately.