Calcutta High Court (Appellete Side)
Majet Ali vs The State Of West Bengal & Ors on 1 December, 2017
Author: Debi Prosad Dey
Bench: Debi Prosad Dey
1 S/L.09 01.12.2017
. C.R.R. No. 2041 of 2017
rc.
In the matter of: Majet Ali
...Petitioner.
-Versus
The State of West Bengal & Ors.
Mr. Narayan Chandra Mondal
Mr. Asok Kumar Pandey
Mrs. Mousumi Chatterjee
.. For the petitioner
Mr. S.G.Mukhopadhyay
Mr. Ayan Basu .. For the State
Mr. Joy Sengupta
Mr. Sagar Saha .. For the O.P.No.2
Challenge in this revisional application is the order no. 41 dated June 02, 2017passed by the learned Additional Sessions Judge, Fast Track Court No. III, Basirhat in S.T.No. 3(1)/2016 whereby and whereunder learned Additional Sessions Judge, Fast Track Court No. III, Basirhat has declared the accused Kader Molla as juvenile on the strength of the evidence adduced by the Headmaster of Khantra F P School as well as the evidence of the mother of Kader Molla. Kader Molla has been arrayed as an accused with the allegation of kidnapping of minor daughter and secondly dead body was discovered on the basis of confessional statement of Kader Molla. Charge sheet has been submitted against Kader Molla showing him as the major. The plea of juvenility was taken in the learned Trial Court and the learned Trial Court after considering the evidences of the Headmaster of a primary school as well as the evidence of the mother of Kader Molla declared him as juvenile.
Learned advocate appearing on behalf of the petitioner contends that, the Trial Court could not appreciate the evidence of the witnesses in its true perspective and thereby came to an erroneous decision with regard to the plea of juvenility of the petitioner and secondly the evidence on record do not actually disclose that the petitioner is a juvenile. Learned advocate draws the attention of the Court that such certificate was issued only on December 22, 2015 by the Headmaster who had joined in the school in the year 2012 and who was not at all present at the time of alleged admission of Kader Molla in such school. Consequently the admit card of Kader Molla reveals that his date of birth as on 29.11.1996 but the school register depicts the date of birth of Kader Molla as on 02.01.1998. In that view of this case learned advocate for the petitioner prays for setting aside of 2 the said order and to issue a direction for medical examination of Kader Molla so as to ascertain his actual age on the date of occurrence.
Learned advocate for the Opposite Party no. 2 contends that in terms of Rule 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000 the learned Trial Court has rightly relied on the evidence on record and, in fact, there is absolutely no scope to issue a direction for medical examination of the Opposite Party No. 2.
Learned advocate for the Opposite Party No. 2 has also relied on a decision reported in 2013(1) Supreme Court Cases (Cri) Page 594 ( Ashwani Kumar Saxena Vs. State of Madhya Pradesh) wherein it has been observed by the Hon'ble Supreme Court that the admission register in the school in which the candidate first attended is a relevant piece of evidence of the date of birth and the said date of birth recorded in the admission register ought to have accepted as a valid piece of document in respect of the date of birth of the person claiming juvenile.
On the contrary learned advocate for the petitioner has also relied on a decision reported in 2012(5) Supreme Court Cases, 201 (Om Prakash Vs. State of Rajasthan & Anr. ). It has been observed by the Hon'ble Apex Court in the said decision that the court must be sensitive in dealing with the juvenile who is involved in cases of serious nature like sexual, molestation, rape, gang rape, murder and other offence and the accused cannot be allowed to abuse statutory protection by admitting to prove himself as a minor when the documentary evidence to prove his minority gives rise to a reasonable doubt about his assertion of minority.
Learned advocate appearing on behalf of the State draws the attention of the Court in respect of the cross-examination of Headmaster of the concerned school wherein the Headmaster has categorically admitted that there was absolutely no document to show as to on the basis of which document the date of birth of Kader Molla was entered into the admission register of Khantra F P School. Learned advocate further draws the attention of the Court with regard to the evidence of the mother of Kader Molla wherein she has stated that the birth certificate of Kader Molla was produced at the time of recording his date of birth in such school. However, the mother of Kader Molla could not produce the birth certificate taking the plea that such birth certificate has been destroyed.
Having considered the submissions of the learned advocates appearing for both the parties and after going through the materials on record it is apparent that the Headmaster was not present on the date of admission of Kader Molla in his school. It is also apparent that birth certificate of Kader Molla was produced by his mother at the time of his alleged admission in such school. Curiously enough even no copy of such birth certificate has been produced in order to show the actual age of Opposite Party No. 2. More so, the certificate showing the date of birth of Kader Molla in the concerned school has been issued on 22.12.2015 long after the commission of alleged offence by the Opposite Party No. 2. After considering the totality of the evidence on record I find that the learned Trial Judge ought to have resorted to the medical examination of the Opposite Party No. 2 in 3 order to come to a definite and logical finding about the actual age of Opposite Party No. 2 on the date of occurrence. Learned Trial Court should not have relied on the evidences produced on behalf of the opposite party no. 2 since it raises some doubt with regard to the actual date of birth of Opposite Party No. 2. Learned advocate for the State has rightly contended that in the new Act the mental age of the juvenile has been taken into consideration in respect of such heinous offence than that of physical age of the juvenile.
In the premises set forth above I do hold that the learned Trial Court has come to an erroneous decision in judging the age of Opposite Party No. 2 by relying on the school certificate and evidence on record. Accordingly the order no. 41 dated June 02, 2017passed by the learned Additional Sessions Judge, Fast Track Court No. III, Basirhat in S.T.No. 3(1)/2016 is set aside.
Learned advocate for the petitioner submits that the matter is now pending before the Juvenile Justice Board at Salt Lake, North 24-Parganas.
The Juvenile Justice Board at Salt Lake, North 24-Parganas is, thus, directed to take appropriate steps for ossification test of the Opposite Party NO. 2 to decide the actual age of Opposite Party No. 2, Kader Molla. If it is found that the Opposite Party No. 2 was major on the date of occurrence, the Juvenile Justice Board at Salt Lake, North 24-Parganas shall refer the matter to the appropriate Court for trial.
It is expected that the Juvenile Justice Board at Salt Lake, North 24-Parganas will complete the entire exercise within a period of three months from the date of receipt a copy of this order.
Let a copy of this order be forwarded to the Juvenile Justice Board at Salt Lake, North 24-Parganas forthwith for information and necessary action.
With the above observations and directions this criminal revisional application stands allowed.
Urgent xerox certified copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Debi Prosad Dey, J.)