Kerala High Court
The Honourable Mr.Justice C.K.Abdul ... vs Present on 15 November, 2010
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
WEDNESDAY, THE 12TH DAY OF APRIL 2017 / 22ND CHAITHRA, 1939
CRL.A.No. 344 of 2011
(AGAINST THE JUDGMENT IN SC 171/2008 of ADDL.DISTRICT &
SESSIONS COURT (ADHOC)-II, KOTTAYAM DATED 15-11-2010)
APPELLANTS/ACCUSED 2 TO 5
1 PRADEEP BORAH,C.NO.5683
CENTRAL PRISON, THIRUVANANTHAPURAM.
2 PRASANTH PUKHAN, C.NO.5684,
CENTRAL PRISON, THIRUVANANTHAPURAM.
3 DIPAKAR CHAJME, C.NO.5685,
CENTRAL PRISON, THIRUVANANTHAPURAM.
4 DILEEP GOGOI, C.NO.5686,
CENTRAL PRISON, THIRUVANANTHAPURAM.
BY ADVS.SMT.P.RAJATHA
SRI.JOSE VARGHESE
SMT.LEKHA SURESH
RESPONDENT/COMPLAINANT:
STATE OF KERALA
PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,, ERNAKULAM.
BY ADV. SMT.AMBIKA DEVI S, SPL.GP ATROCITIES
AGAINST WOMEN & CHILDREN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-04-2017, ALONG WITH
DSR No.2/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AMG
' C.R.'
C.K. ABDUL REHIM, J.
&
B. SUDHEENDRA KUMAR, J.
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Crl. Appeal No. 344 OF 2011
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DATED THIS THE 8th DAY OF SEPTEMBER, 2016
ORDER
Abdul Rehim, J:
The above appeal is preferred by the Accused No.2 to 5 in S.C. No.171 of 2008 on the files of the Sessions Court, Kottayam, against conviction and sentence imposed under Sections 120(B), 449, 396 and 302 read with Section 34 I.P.C. Originally the Appellants have preferred this appeal from the jail directly and a State Brief was appointed to contest the appeal on behalf of the appellants.
Subsequently, Adv.Rajatha P. Jacob filed vakalath and entered appearance on behalf of the appellants. One of the grounds raised in the Memorandum of Appeal is that, the appellants 2 and 3, who are accused No.3 and 4 respectively, were minors at the time of the alleged incident and that documents proving their date of birth will be produced before this court in due course. On 10.3.2014, learned counsel for the appellants handed over certain documents before this court in this respect. The documents Crl. Appeal No. 344/2011 -2- produced were the Birth Certificates of Appellants 2 and 3 issued by the Department of Health Services, Government of Assam signed by the Registrar of Births and Deaths, Sissi, Borgaon, Assam State, indicating that, date of birth of the 2nd accused is 28.10.1991 and that of the 3rd accused is 7.11.1991. Transfer/Leaving Certificates of both the above appellants issued by the Head Master of Nilakh Chapari High School, P.O.Palengi Panch ali, Dist: Dhemaji, Assam dated 31.12.2006 were also produced bearing signature and seal of the Head Master of the said school. There also the date of births of both the appellants are shown as 28.10.1991 and 7.11.1991, respectively.
2. Based on the above said documents this court found that, if contents of those documents are true and correct, the conviction and sentence imposed against the Appellants 2 and 3 are not sustainable, since both the appellants were only around 15 years of age at the time of the occurrence. Hence this court decided to make a verification regarding genuineness of the contents of the above said documents produced. The District Police Chief, Kottayam was directed Crl. Appeal No. 344/2011 -3- to personally verify correctness of the contents of the said documents and to file a report regarding its authenticity before this court. Pursuant to the said order passed on 10.3.2014, a report of the Sub Inspector of Police, Mundakayam, who was entrusted with verification of the documents was produced before this court along with a covering letter of the Dy. Superintendent of Police, Kottayam. In the report of the Sub Inspector it is stated that, he along with his subordinate officers were deputed for verification regarding genuineness of the documents and as part of the enquiry the team had visited the Primary Health Centre, Sissi, Borgaon, Assam from where the Birth Certificates were issued. They met the present incumbent in the office of the Medical Health Officer, who in turn verified the Registers and admitted that the Birth Certificates were issued from that office on 31.12.2004. The Medical Health Officer had issued a Certificate to that effect. It is stated by the Sub Inspector of Police had verified the Register and found that the date of birth and date of issue contained in the Register are the same as Crl. Appeal No. 344/2011 -4- contained in the documents produced before this court. The report also indicated that the team had visited the Head Master of Nilakh Chapari High School, PO: Palengi Panch ali, Dist: Dhemaji, Assam. But the Head Master was not present and the person in charge of the Head Master as well as the Office Assistant were available. After verification of the records they conceded that the Transfer Certificates were issued from the school on 31.12.2004 and that the date of birth noted therein tallies with the Admission Register kept in the school. The Head Master-in- charge had also issued a certificate to that effect. The learned Government Pleader had also produced a written instruction received from the District Police Chief, Kottayam, endorsing the above facts.
3. When the case came up for further consideration on 21.7.2014, this court observed that the District Police Chief, Kottayam has not submitted any report to this court in compliance with the direction issued. It was observed that the District Police Chief had failed in making any request to this court to allow him to depute a Sub Inspector of Police Crl. Appeal No. 344/2011 -5- for the purpose of making an enquiry. Further it was observed that, it appear that the District Police Chief took the direction in a very casual manner. Therefore, this court issued a further direction to the District Police Chief to scrupulously comply with the directions contained in the order dated 10.3.2014 and to submit a report within two moths, taking note of seriousness of the issue. This court found that if the above said two appellants are really genuine, they are entitled to get release from jail. But on the other hand, if they were not juveniles at the relevant time, the question whether the conviction should be confirmed or not is to be considered by this court.
4. Pursuant to the above said order dated 21.7.2014, the District Police Chief, Kottayam filed an affidavit detailing about the actions taken, in which it is conceded that because of his hectic duties in connection with the general elections, permission could not be obtained from this court for deputing an investigation team to the state of Assam. However, it is informed that a special investigation team will be constituted comprising a Dy. Superintendent of Crl. Appeal No. 344/2011 -6- Police, who is one of the senior most Police officers in the District, assisted by a team of subordinate officers. This court granted permission for constituting a special team in order to make an endeavour to verify correctness of the documents. Thereafter a detailed affidavit sworn to by the Deputy Superintendent of Police, who headed the investigation team was filed before this court, on behalf of the District Police Chief. In the affidavit it is mentioned that, on a visit to the High school in question and on a perusal of the Admission Registers kept in the School, on a cursory glance itself it was seen that the entries relating to the Appellants 2 and 3 are not genuine, which were only subsequently added in the Register. It is stated that the ink used for the entries were found to be different. It is mentioned that, the Officer reasonably believes that those are subsequent entries fabricated in the Register. The originals of the 'Attendance Register' and 'Admission Register' of the School were produced before this court. Further it is mentioned that, on a verification of the relevant records maintained at the Primary Health Centre, it was Crl. Appeal No. 344/2011 -7- revealed that the Birth Certificates are false and forged, in as much as counter foils of the Certificates maintained at the office would reveal that Certificate Book was printed in the year 2009 whereas the signature contained therein bears the date as 31.12.2004. Hence, it is opined that those documents were fabricated with an anti dated signature. The original documents seized from the said office were also produced along with the affidavit. It is further averred in the affidavit that, the date of births were seen entered in the Register kept for the said purpose, without there being any proper orders obtained from any Magistrate or Presidency Magistrate, with respect to the delayed entry, as required under relevant Rules prevailing in the State of Assam. A certificate was also produced to the effect that the dates of the births were not registered within the statutory period stipulated.
5. Along with the affidavit of the Deputy Superintendent of Police, yet another document was produced, which is allegedly a 'Transfer/School Leaving Certificate' produced by the 3rd appellant before Crl. Appeal No. 344/2011 -8- M/s.Paragon Polymer Products Ltd., Chettikkunnu Nattakom, wherein the 3rd appellant had worked as a labourer. As per the said Certificate the date of birth of the 3rd appellant is noted as 5.7.1987. From the above said circumstances, the Deputy Superintendent of Police opined that the Appellants 2 and 3 might have procured fabricated documents before the court by utilising assistance of their friends and relatives at Assam, by indulging any illegal methods. Hence it is opined that those documents could not be accepted.
6. When the case came up for further consideration on 9.1.2015, learned counsel for the appellants sought time to file affidavits of appellants 2 and 3, contending that the certificate obtained from the employer at Nattakom was obtained only for the purpose of getting a job in Kerala. Subsequently, affidavits of appellants 2 and 3 sworn in before the Central Prison, Viyyur were produced before this court. Both the appellants have reiterated about genuineness of the documents produced by them before this court.
Crl. Appeal No. 344/2011 -9-
7. While considering the circumstances illustrated as above and on consideration of the rival contentions this court found that a direct verification of the original records are necessary to resolve the controversy. After perusal of the 'Admission Register' as well as the 'Attendance Registers' produced from the High School concerned, this court felt that a verification of the Admission Register of the first school in which both the appellants have studied, is necessary. So also it is felt necessary to have a verification of the original 'Register of Births' kept by the authority concerned. Hence, this court on 27.7.2016 issued summons for production of the original of the 'Register of Births' kept for the period covering the date 31.12.2004, containing the relevant entries of registration of births of the Appellants 2 and 3, from the Registrar of Births and Deaths (Medical Officer-in- charge), Block Primary Health Centre, Sissi Borgaon, Dhemaji District, State of Assam. Summons was also issued for production of the 'Admission Register' of the above said appellants from the Headmaster, Nilakh Chapari M.E. School, PO: Palengi Panch ali, Dist: Dhemaji, Assam Crl. Appeal No. 344/2011 -10- state. In response to the summons issued in this regard through the High Court of Guwahati, the Registrar of Births and Deaths (The Medical Offier in charge), Block Primary Health Centre, Sissi Borgaon, Dhemaji District, State of Assam had produced the original of 'Register of Births'. The Head Master, Nilakh Chapari M.E. School, PO: Palengi Panch ali, Dist: Dhemaji, Assam state had forwarded a reply to the Registrar to this court, informing that names of both the above said appellants are not recorded in the Admission Register of the said school. It is mentioned in the letter that they might have studied in any ther neighbouring schools in the L.P. Section as well as in the middle school section. Names of 5 other schools neighbouring to their place of residence was also informed.
8. On a perusal of the original of the 'Register of Births and Deaths' produced by the Medical Health Officer Primary Health Centre, Sissi Borgaon, Dhemaji District, State of Assam, we notice that there are entries made in the Registers on 31.12.2004 with respect to the births of the Appellants 2 and 3, with Sl.Nos.1075 and 1076, Crl. Appeal No. 344/2011 -11- respectively. The date of birth of the 2nd appellant is noted as 28.10.1991 and that of the 3rd appellant is noted as 7.11.1991. Other entries in the relevant column in the Register like, place of birth, permanent address, fathers name, mothers name etc. are perfectly tallying with the contents of the certificates produced by those appellants and also with details available in the records of the court below. Even though there is no indication as to how the belated registration was accepted, we find nothing to indicate only fabrication or forgery with respect to the entries contained in the said Register. In this regard it is pertinent to note that, births of both the above said appellants was registered during December 2004, whereas the occurrence alleged in the case was only on 13.4.2008. Therefore, it cannot be persumed that the registration of the births were made on any date subsequent to the incident with any ill-motive of claiming juvenility. The Deputy Superintendent of Police who conducted the enquiry had doubted genuineness of the birth certificates by observing that the signature of the Registrar contained in Crl. Appeal No. 344/2011 -12- the counter foils of the Certificates bears the date of 31.12.2004 whereas it is evident from the counter foils that it was printed only in the year 2009. On a perusal of the original counter foils produced along with the affidavit of the Deputy Superintendent of Police, we notice that the dates put beneath the signature, which is presumably the date of issue of those certificates, is a date in the year 2011. The date 31.12.2004 noted therein is only the date of registration of the births. Therefore we are not inclined to accept the reasons mentioned by the said officer, for doubting genuineness of the Birth Certificates produced.
9. With respect to the 'Admission Register' of the school, a doubt was expressed regarding the difference in the ink and that the entries were subsequently entered. But on a perusal of the original documents, we find that the hand writings with respect to the relevant entries seems to be the same as that of other entries in the Register. Since those Registers pertain to the year 2005 and 2006, we do not think that normally there can be any subsequent fabrication made in the same hand writing. There is no Crl. Appeal No. 344/2011 -13- clear indication of any subsequent incorporation of the relevant entries in the Register. On a primafacie appreciation, we do not find any difference in the ink also. The above said Registers were handed over to the learned Special Public Prosecutor appearing on behalf of the respondent. After perusal of the entries in the Birth Register, the Prosecutor also is not in a position to raise any valid objection against acceptance of the same.
10. From the facts enumerated as above, this court is convinced that the appellants 2 and 3, who are accused Nos.3 and 4 in the case, could produce convincing evidence before this court that their date of births as contained in the 'Register of Births and Deaths', which is a statutory record, is 28.10.1991 and 7.11.1991, respectively. Therefore, as on the date of the occurrence (13.4.2008) they have not completed the age of 18 years. Hence we are inclined to arrive at a finding that they were Juveniles as on the date of commission of the alleged offence. Hence going by the provisions contained under Sub Section 2 of Section 7A of the Juvenile Justice (Care and Protection of Children) Act, Crl. Appeal No. 344/2011 -14- 2000 (as amended by the Amendment Act of 2006) the sentence passed by the trial court deemed to have no effect and this court has to forward the juveniles to the Board constituted under the Act, for passing appropriate orders.
11. But in the case at hand we take note of the fact that, the appellants 2 & 3 were under custody from the date of their apprehension, i.e. from 30-04-2008 and 27-04-2008 onwards respectively. In this regard it is pertinent to note that, provisions contained in Section 15 (1) (g) read with the proviso to Section 16 (2) of the Act would make it clear that the maximum time for which the juvenile can be sent to a special home, is for a period of 3 years. The hon'ble Supreme Court in an identical situations in Anil Agarwala and another V. State of West Bengal ((2012) 9 SCC 768) held that, since the appellants therein had undergone detention for a period which is more than the maximum period for which the juvenile may be confined in a special home, the appellants were ordered to be released from custody. A similar approach was taken by the hon'ble Supreme Court in Upendra Kumar V. State of Bihar Crl. Appeal No. 344/2011 -15- ((2005) 3 SCC 592), after referring to various earlier legal precedents. In yet another decision in Dharambir V. State (NCT of Delhi) and another (AIR 2010 SC 1801) the hon'ble apex court had quashed the sentence and released the appellants on the same grounds.
12. Under the above mentioned factual matrix, question arises as to whether this court need to refer the juveniles to the Board constituted under the Act for passing appropriate orders, as contemplated under Section 7A of the Act, even if it is convinced that the juveniles have undergone detention in the same case, beyond the maximum period for which they can be ordered to be sent to the special home (correction home). We are of the opinion that such an exercise will be totally futile and will led only to a wastage of precious judicial time and it will be resulting in putting the Accused, who were already crossed juvenility, to an unnecessary ordeal of judicial process. Going by legal precedents remaining settled by the hon'ble apex court, we are of the considered opinion that this is a fit case where the inherent powers vested on this court under Crl. Appeal No. 344/2011 -16- Section 482 Cr.P.C. can be invoked to order release of the Appellants 2 & 3 who were found to be juveniles as on the date of occurrence and who had already undergone confinement for a period of more than 3 years.
13. In the result, the conviction and sentence passed by the Sessions Court, Kottayam in SC No.171/2008 against Accused Nos. 3 & 4 (Appellants 2 & 3 herein) will stand set aside. They are directed to be released forthwith, if their confinement is not required for the purpose of any other case. The Registry is directed to communicate the gist of the order, forthwith, to the Superintendent of the jail concerned.
14. Registry is directed to re-transmit originals of the Registers to the offices concerned, after keeping photostat copies of the relevant pages of the same in the records.
Sd/-
C.K. ABDUL REHIM, JUDGE.
Sd/-
B. SUDHEENDRA KUMAR, JUDGE.
DL/AMG True copy P.A. to Judge