Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 153 (GAU)

Dipankar Deka v. State of Assam

2020-02-06

HITESH KUMAR SARMA, SUMAN SHYAM

body2020
JUDGMENT : Suman Shyam, J. 1. We have heard Mr. K. Sarma, learned counsel appearing on behalf of accused-appellant We have also heard Mr. R.J. Baruah, learned Additional Public Prosecutor, appearing for the State of Assam. 2. Assailing the judgment and order dated 7.6.2017, passed by the learned Sessions Judge, Barpeta, in Sessions Case No. 296 of 2012, the appellant has preferred the instant appeal along with a separate application being I.A.(Crl.) No. 581 of 2017, praying for suspension of the sentence and to release him on bail. 3. The appellant in this case has taken the plea of juvenility at the appellate stage. Mr. Sarma, learned counsel for the appellant has prayed for setting aside the conviction of the appellant and to remand the matter before the learned Juvenile Justice Board, Barpeta, for further proceeding in accordance with law. 4. This Court has noticed that the appellant has produced a copy of the school certificate dated 22.10.2016, issued by the Headmaster of 1622 No. Hijalratari Primary School, to establish that he was a juvenile on the date of occurrence, i.e., on 27.7.2008. The aforesaid school certificate indicates that as per the Admission Register, his date of birth was 9.4.1992. 5. By order dated 21.08.2017, this Court, while taking note of the plea of juvenility raised by the appellant's counsel, had directed the District and Sessions Judge, Barpeta to conduct an inquiry regarding the plea of juvenility of the appellant and submit are port. Accordingly, the learned District Judge, Barpeta had conducted an inquiry and thereafter, submitted her report vide forwarding letter dated 17.11.2017. In the aforesaid report, the learned District & Sessions Judge, Barpeta had observed that the age of the appellant reflected in the school certificate dated 22.10.2016 (Ext. 1) was in contradiction with the school attendance register and, therefore, the said document could not be relied upon nor could the accused/appellant be declared as juvenile in conflict with law on the basis of the said certificate. 6. Upon perusal of the aforesaid report, this Court had passed the order dated 10.01.2018 I.A.(Crl.) No. 595 of 2017 rejecting the report submitted by the learned District & Sessions Judge, Barpeta granted bail to the appellant. The operative portion of the order dated 10.01.2018 is reproduced herein below for ready reference: "Ext. 6. Upon perusal of the aforesaid report, this Court had passed the order dated 10.01.2018 I.A.(Crl.) No. 595 of 2017 rejecting the report submitted by the learned District & Sessions Judge, Barpeta granted bail to the appellant. The operative portion of the order dated 10.01.2018 is reproduced herein below for ready reference: "Ext. 1 is a certificate issued by Shri Dipankar Talukdar, a retired teacher of No. 1622 Hijalratari L.P. School, Sarthebari dated 22.10.2016. according to District and Sessions Judge, Barpeta, in Ext. 1 certificate, it was mentioned that as per admission register on 09.04.1992, age of the appellant was 24 years 6 months 13 days. However, as per Admission Register of the School, which was produced before the District and Sessions Judge, Barpeta, appellant was admitted in School on 28.01.1999. at the time of admission, he was 7 years of age. In the Attendance Register of 2000, appellant's name was found in class-II and in the year 2001, he was reading in class-III. If appellant was 7 years of age in 1999 as per the Admission Register, it would mean that he was born sometime in the year 1992. Father of the appellant, Shri Jyotish Deka, in his deposition stated that his son, Dipankar Deka, was born on 9.4.1992. this statement of the father prima facie corroborates the contents of the Attendance Register of 1999 and 2000. There is a whole lot of difference between a person being born in 1992 and being 24 years of age in 1992. As per Sub-Rule (2) of Rule 12, the Court or the Board or the Child Welfare Committee shall decide the juvenility or otherwise of the person in conflict with law prima facie on the basis of physical appearance or documents, if available. The difference in the physical appearance of a person who was born in 1992 and a person who was 24 years of age in 1992 would be distinctly apparent or discernible even to a layman. Therefore, we are not inclined to accept the report submitted by the District and Sessions Judge, Barpeta that appellant was not a juvenile on the date of occurrence. In a case of this nature, when there is doubt and two views are distinctly possible in so far juvenility is concerned, Court would lean in favour of the view supporting juvenility. Therefore, we are not inclined to accept the report submitted by the District and Sessions Judge, Barpeta that appellant was not a juvenile on the date of occurrence. In a case of this nature, when there is doubt and two views are distinctly possible in so far juvenility is concerned, Court would lean in favour of the view supporting juvenility. In such circumstances without making final determination on the point of juvenility at this stage, we feel that a case for bail has been made out in favour of the appellant. That being the position, we direct the appellant, Shri Dipankar Deka, to be released on bail on furnishing bail bond of Rs. 25,000/- with two local sureties each of the like amount to the satisfaction of the learned District and Sessions Judge, Barpeta." 7. From the above, it would be clear that although the Division Bench had rejected the Report furnished by the learned District & Sessions Judge, Barpeta for the reasons recorded in the order dated 10.1.2018, yet the juvenility of the appellant was not finally determined by the order dated 10.1.2018. Therefore, the issue that has arisen before this Court is as to whether, it is necessary and permissible under the law to issue a fresh inquiry for determining the juvenility of the appellant or whether this Court can itself determine the question of juvenility of the appellant based on the document available on record. 8. Mr. A.M. Bora, learned senior counsel, appearing as Amicus Curiae in this case, has invited our attention to the provisions of Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (in short, 2007 Rules') to submit that the question of juvenility of a child in conflict with law can be determined by the Court or any other authority mentioned therein based on any of the three categories of documents mentioned in Sub-Rule (3)(a) of Rule 12 of 2007 Rules and the bar created by Sub-Rule (5) of Rule 12 prohibiting further inquiry in the matter, if any, would be applicable only if a proper inquiry leading to the determination of the question of juvenility has already been made by a competent authority by relying upon any of the documents referred to in Sub-Rule (3)(a) of Rule 12 of the 2007 Rules. The learned Amicus Curiae has, however, submitted that there is no absolute bar to further inquiry and if the Court is satisfied that such further inquiry is necessary for ends of justice, the same can always be made. According to Mr. Bora, the School Certificate available on record being a document falling within the three categories mentioned in Sub-Rule (3)(a) of Rule 12 of the 2007 Rules and validity of such document not having been questioned by either party, it would be open for this Court to decide the question of juvenility based on such document. 9. Mr. Baruah, learned Additional Public Prosecutor, Assam, has submitted that the question of juvenility has not been determined by the learned District & Sessions Judge, Barpeta nor has this Court determined the said question by the order dated 18.01.2018 and, therefore, the matter is required to be remanded before the competent authority for conducting a fresh inquiry. 10. We have considered the submission advanced by the learned counsel for both parties. 11. A careful perusal of the report submitted by the learned District & Sessions Judge, Barpeta goes to show that some doubt was created in the mind of the learned Sessions Judge as regards the entries made in the Admission Register as well as the school certificate, dated 22.1.2016, issued by the authorities in the form of Ext. 1. However, from a close scrutiny of Ext. 1, we find that the aforesaid document clearly and unequivocally records the date of birth of the appellant as 09.04.1992. The aforesaid school certificate is a document coming within the definition of Sub-Rule (3)(a)(ii) of Rule 12 of the 2007 Rules. The genuineness of the document has not been disputed by the State. 12. As per Rule 12(3) of the 2007 Rules, the Court would be competent to determine the age of a juvenile on the basis of such document referred to in the aforesaid Sub-Rule. If that be so, in our view, this Court, despite being the appellate Court, would be empowered to decide the question of juvenility if cogent materials are available on record. 13. As noticed above, the learned District & Sessions Judge, Barpeta, in her report, had observed that the documents are not sufficient to determine the question of juvenility of the appellant, but she has not recorded any finding on the aforesaid question. 13. As noticed above, the learned District & Sessions Judge, Barpeta, in her report, had observed that the documents are not sufficient to determine the question of juvenility of the appellant, but she has not recorded any finding on the aforesaid question. Likewise, the learned Divisions Bench has also not decided the question of juvenility of the appellant by the order dated 10.1.2018, but has left the matter open for being decided at an appropriate stage. If the date of birth of the appellant, as projected in the school certificate, is taken to be 9.4.1992, then on the date of occurrence, i.e., on 27.7.2008 the appellant was certainly a juvenile in conflict with law. The confusion in this case appears to have arisen on account of the fact that the certificate dated 22.10.2016 also mentions, "his age is 24 years 6 months 13 days". However from an proper reading of the certificate, we are of the view that the aforesaid age refers to the age of the appellant on the date of issuance of the certificate and not on 09.04.1992. The above position is clear from plain reading of Ext. 1, School Certificate, and, therefore, does not create any inconsistency or doubt as regards his date of birth. In other words, the School Certificate makes it amply clear that the appellant was a juvenile on the date of commission of the offence and, therefore, his conviction under Section 302 of the IPC and the sentence imposed there upon by the learned District and Sessions Judge, Barpeta by the judgment and order dated 07.06.2017 is unsustainable in the eye of law. The conviction of the appellant is, therefore, set aside. Consequently, the sentence is also interfered with. The matter is remanded to the learned Juvenile Justice Board to proceed in accordance with law. 14. Before parting with the record, we would like to put on record a word of appreciation for the assistance rendered by Sri A.M. Bora, learned senior counsel, as Amicus Curiae, who has declined to accept any remuneration for his service. The appeal stands disposed of accordingly. 14. Before parting with the record, we would like to put on record a word of appreciation for the assistance rendered by Sri A.M. Bora, learned senior counsel, as Amicus Curiae, who has declined to accept any remuneration for his service. The appeal stands disposed of accordingly. However, in view of the pendency of another appeal arising out of the common judgment, dated 7.6.2017, Registry shall retain the original LCR in connection with the Criminal Appeal No. 317 of 2017 and send a scanned copy of the LCR to the learned Juvenile Justice Board for compliance of this order.