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2015 DIGILAW 266 (GAU)

Albert Tiru v. State of Assam

2015-03-04

M.R.PATHAK

body2015
ORDER 1. This Criminal Appeal has been preferred by the accused appellant Sri Albert Tiru, from jail, against the Judgment of conviction dated 10.04.2008 passed by learned Assistant Sessions Judge, Lakhimpur, North Lakhimpur in Sessions Case No. 22 (NL) 2007 under Section 376(2)(f) of the Indian Penal Code (IPC, in short) and sentenced him to undergo Rigorous Imprisonment for 10 (ten) years and to pay a fine of Rs. 1,000/- in default, to undergo Rigorous Imprisonment for another 2 (two) months, setting of the period of detention undergone by the accused appellant during trial. We have heard Mr. Ashim Chamuah, learned Amicus Curiae for the accused appellant and Mr. Hrishikesh Sarma, learned Additional Public Prosecutor, Assam representing the State. 2. It is seen from the records that on 28.04.2006 Sri Welson Surin lodged an FIR around 10:00 a.m. before the Harmoti Police Out Post of Lakhimpur District stating that on 26.04.2006 around 4:00 p.m. the accused Sri Albert Tiru enticing his minor daughter of 7 (seven) years Ms. A. (original name withheld) called her to the house of Daniel Dengra, wherein he sexually tortured her and on the next day, seeing blood stain on her clothes, while those were taken for washing, on being asked, she told that the said accused raped her. 3. On receipt of the said FIR, Harmoti Out Post G.D. Entry No. 485 dated 28.04.2006 was made and the same was forwarded to the Laluk Police Station and accordingly, Laluk Police Station Case No. 57 of 2006, corresponding to G.R. No. 463 of 2006 under Section 376(2)(F) of the IPC was registered. On completion of the investigation, finding sufficient evidence against the aforesaid accused appellant, police submitted the charge sheet in the case on 24.07.2006 vide No. 28 of 2006 against him for the offence under Section 376(2)(F) IPC and the said Section of the IPC being exclusively triable by the Court Sessions, learned Chief Judicial Magistrate, Lakhimpur, North Lakhimpur on 12.02.2007 committed the said G.R. Case No. 463 of 2006 to the Court of learned Sessions Judge, Lakhimpur, North Lakhimpur for its trial. 4. Accordingly, on receipt of the aforesaid case record, it was registered as Sessions Case No. 22 (NL) 2007 and leaned Sessions Judge, Lakhimpur, North Lakhimpur vide order dated 22.02.2007 transferred the same to the Court of learned Assistant Sessions Judge, Lakhimpur, North Lakhimpur for disposal of the same. 5. 4. Accordingly, on receipt of the aforesaid case record, it was registered as Sessions Case No. 22 (NL) 2007 and leaned Sessions Judge, Lakhimpur, North Lakhimpur vide order dated 22.02.2007 transferred the same to the Court of learned Assistant Sessions Judge, Lakhimpur, North Lakhimpur for disposal of the same. 5. Learned Trial Judge finding sufficient materials in the case, vide his order dated on 07.05.2007 framed charge under Section 376(2)(F) IPC against the accused appellant, which was read over and explained to him, to which the accused appellant pleaded not guilty and claimed to be tried. Accordingly trial of the case began. 6. The prosecution in order to bring home the charges has examined 9 (nine) witnesses. Though the defence cross examined the prosecution witnesses, but it did not examine any witness. 7. On completion of recording of the evidence of the prosecution, Section 313 Cr. P.C. statement of the accused appellant was recorded on 22.02.2008. Accordingly, the learned Assistant Sessions Judge, Lakhimpur, North Lakhimpur upon appreciation of the evidence, adduced by the prosecution, recorded the impugned Judgment of conviction dated 10.04.2008 against the accused appellant in Sessions Case No. 22 (NL) 2007 under Section 376(2)(f) of the IPC and since then the accused appellant is in custody in compliance of the sentence imposed upon him in the said judgment. 8. From the perusal of the case records, it is seen that during his presence in the Court on 09.04.2007, learned Trial Court found the accused appellant to be of tender age and on being asked, the accused stated that he is of 15 (fifteen) years old and read up to Class-VIII in Dubi High School of Lakhimpur District Learned Trial Court from the Medical Examination Report of the accused appellant (report relating to the injury on the person of the accused) submitted by police found that the age of the accused has been mentioned as 19 (nineteen) years. Learned Trial Court from the forwarding report of the accused also found that accused appellant's age has been mentioned therein as 19 (nineteen) years. 9. Learned Trial Court from the forwarding report of the accused also found that accused appellant's age has been mentioned therein as 19 (nineteen) years. 9. However, learned Trial Court going through the said reports with regard to the age of the accused person, finding it to be mere mention of age and not the opinion of the Doctor, vide his order dated 09.04.2007 passed in the said Sessions Case No. 22 (NL) 2007 called for a report from the Head Master of Dubi High School regarding the age of the accused fixing 30.04.2007 as the next date of the case. Said order dated 09.04.2007 was communicated to the Head Master of Dubi High School vide Memo No. CS (S.D.) L/497-98/07 dated 24.04.2007 and he was directed to furnish Certificate regarding age of the accused Albert Tiru. 10. It is seen that no order could be passed on 30.04.2007 as the learned Trial Judge was on leave and the matter was fixed on 07.05.2007. From the records of the case it is seen that on examination of the school certificate and other documents & school records of the accused [including the statements of regular candidates registered in the Dubi High School (School Code: 16R/0154) for the Session 2003, printed on 24.09.2004 (page No. 2876-2877), sent to the Board of Secondary Education, Assam (SEBA), Bamunimaidan, Guwahati submitted by the Head Master of said Dubi High School as directed; learned Trial Court vide his Order dated 07.05.2007 passed in said Sessions Case No. 22 (NL) 2007 clearly found that the date of birth of the accused is 1st September 1988 and that the date of occurrence of the incident with regard to the case in hand took place on 26th April 2006 and the learned Trial Judge came to the conclusion that the accused appeared to have attained the age of 18 (eighteen) years of age on the date of the incident and accordingly charge under Section 376(2)(F) IPC was framed against the accused appellant as stated above and the said proceeding against him went ahead. 11. 11. However, as per finding of the learned Trail Judge on 07.05.2007 that the date of birth of the accused appellant is 01.09.1988 and on proper calculation, it is seen that on the date of occurrence of the incident on 26.04.2006, the appellant/accused was only 17 (seventeen) years 7 (seven) months and 25 (twenty five) days, did not attain the age of 18(eighteen) years of age on the date of occurrence of the incident years and the said accused was a Juvenile on the date of the incident 12. It is also seen from the case records that on the basis of reports, certificates and other documents with regard to the date of birth of the accused appellant, submitted by the Head Master of said Dubi High School, wherein the accused appellant studied up to Class-VIII; the learned Trial Judge vide his order dated 07.05.2007 passed in said Sessions Case No. 22 (NL) 2007 although found the date of birth of the accused appellant as 1st September 1988, but the learned Trial Judge committed error in considering that on the date of occurrence of the incident on 26th April 2006, the accused appellant appeared to have attained the age of 18 (eighteen) years. 13. The Juvenile Justice (Care and Protection of Children) Act 2000 provides that claim of juvenility of may be raised before any Court at any stage and it shall be recognised at any stage, even after disposal of the case. For that purpose even Court of its own can come to a conclusion after making necessary enquiry, taking such evidence as may be necessary, whether the accused person is a juvenile (who has not completed eighteenth years of age) or not on the date of commission of the offence. For that purpose even Court of its own can come to a conclusion after making necessary enquiry, taking such evidence as may be necessary, whether the accused person is a juvenile (who has not completed eighteenth years of age) or not on the date of commission of the offence. Section 7-A of the said 2000 Act reads as follows: "7-A. Procedure to be followed when claim of juvenility is raised before any court (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an enquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-Section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect." 14. Further, Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007 framed under Section 68 of the Juvenile Justice (Care and Protection of Children) Act, 2000 provides for procedure for determining the age of a juvenile, which reads as follows: "12. Procedure to be followed in determination of Age. (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (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) 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. 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. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7-A, Section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law." 15. From the above, it is clear that the appellant accused Albert Tiru was a juvenile on the date of occurrence of the incident. Accordingly, the sentence imposed upon the said appellant accused by the impugned Judgment dated 10.04.2008 passed by leaned Assistant Sessions Judge, Lakhimpur; North Lakhimpur in Sessions Case No. 22 (NL) 2007 is hereby set aside and quashed and the said appellant/accused Albert Tiru is directed to be released forthwith in the aforesaid case. 16. Accordingly, the matter now be remitted to the District Juvenile Justice Board, Lakhimpur, North Lakhimpur constituted under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 for holding the inquiry against the appellant/accused above named and record appropriate order of conviction or acquittal, as the case may be, on the basis of evidence adduced by the parties. 17. 17. However, the said Board, if on conclusion of the inquiry, comes to the finding that the accused appellant above named has committed the offence as alleged; the Board while passing the appropriate order, it shall also consider the fact that the accused appellant has already attained the age more than twenty six and half years by now and that he was in jail custody during the investigation stage of the case and since 10.04.2008, in compliance of the impugned Judgment of conviction and sentence. Further, the learned Juvenile Justice Board, if on such inquiry, finds the appellant/ accused to be guilty of the offence committed by him, as alleged, shall also determine the appropriate quantum of fine that should be levied on the said accused and the compensation that should be awarded to the victim of the case under the provisions of Section s 357 and 357A of the Code of Criminal procedure, 1973; which has also been made applicable in the matters to be determined by the Juvenile Justice Board under the aforesaid 2000 Act, as per the law settled by the Hon'ble Supreme Court of India in he case of Jitendra Singh & Another vs. State of Uttar Pradesh, (2013) 11 SCC 193 . 18. Before parting with the case, the assistance rendered by the Amicus Curiae of this case Mr. Ashim Chamuah is acknowledged and the State Legal Services Authority, Assam is directed to pay Rs. 7,000/- towards his remuneration for conducting the case for the accused appellant as an Amicus Curiae. 19. With the aforesaid observations and directions this appeal stands disposed of. Registry shall send down the records forthwith as directed above with and shall also intimate this order to the Superintendent, District Jail, North Lakhimpur with a copy of this Order for their necessary compliance. Disposed off.