Calcutta High Court (Appellete Side)
Sudip Banerjee @ Babusona vs The State Of West Bengal on 3 January, 2019
Author: Jay Sengupta
Bench: Jay Sengupta
1
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Jay Sengupta
C.R.R. 513 of 2018
Sudip Banerjee @ Babusona
Versus
The State of West Bengal
For the petitioner : Mr. Kamalesh Ch. Saha
..... Advocate
For the State : Mr. Saswata Gopal Mukherjee (Ld. PP)
Ms. Anasuya Sinha
......Advocates
For the Opposite Party No. 2: Mr. Kallol Kumar Basu
Mr. Rahul Halder
Mr. Siddhartha Bhattacharya
.......Advocates
Heard on : 27.09.2018, 04.10.2018
Judgment on : 03.01.2019
2
Jay Sengupta, J.:
1. This is an application challenging an order dated 09.02.2018 passed by the Learned Judge, Special Court (POCSO Act), Basirhat, North 24 Parganas in Case No. Spl. (POCSO) 27 of 2017 under Sections 306, 354, 417 of the Penal Code and Section 6 of the Protection of Children from Sexual Offences Act (POCSO Act, for short), thereby, inter alia, holding the victim girl to be a minor at the date of occurrence.
2. In the course of the above referred proceedings, the accused/petitioner filed a petition dated 28.08.2017 praying for ascertaining the date of birth of the victim girl, presumably for testing the applicability of the POCSO Act on the present facts. It was contended by the petitioner that the victim was born at the Basirhat General Hospital on 09.09.1998 and the said was recorded in the Municipal Birth Register, but as per school admit card, her date of birth was 08.03.1999.
3. On the question of date of birth and age of the victim girl, evidence was led. The Prodhan of the Champapukur from Panchayat, as PW 1, deposed that as per their Register of Births and Deaths, the date of birth of the victim girl was recorded as 08.03.1999. In his cross, he stated that the said date was registered on 17.02.2004 and admitted that there was some overwriting on the 'month' portion. DW 1, the Officer-in-Charge of Basirhat Municipality Register of Births and Deaths proved an entry of the birth of a female child to the parents with the same names as those of the victim on 3 09.09.1998. In the cross-examination, he admitted that the initial put against the relevant entry was not recognised by him. He also admitted that Champapukur fell outside the jurisdiction of Basirhat Municipality.
4. On 09.02.2018, the Learned Trial Court recorded that there was no overwriting on the year of the date as contained in the document of the Panchayat. The Learned Judge went on to rely on Section 94 (2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (Act of 2015 for short) which provides as under -
" In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining-
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available;
and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order."4
The Learned Judge finally held that according to the statute, when birth date was available from the School Registration Certificate under the West Bengal Board of Secondary Education as well as from its Admit Card, where the birth date is given as 08.03.1999, one cannot travel beyond the same. In fact, this date was also corroborated by a school certificate.
5. The Learned Advocate appearing on behalf of the petitioner submitted that the charge under the POCSO Act was added only after submission of charge-sheet. He submitted that when there were two birth dates given in two different documents, the benefit of doubt should go in favour of the accused. The Learned Advocate relied on the paragraphs 23 and 72 of the decision passed by the Hon'ble Supreme Court in Ms Eera vs. State, 2018 (2) Crimes 99 (SC) in support of his contention that medical examination of the victim for determination of age is an absolute imperative in all cases under the POCSO Act.
6. The Learned Advocate appearing on behalf of the State vehemently opposed the application. He submitted that as per records, the victim was a minor when the alleged crime was perpetrated on her, but became a major when she succumbed to death. He submitted that Section 376 of the Penal Code was incorporated in the supplementary charge-sheet filed in this case. The Learned Advocate further submitted that in all the three documents seized by the investigating agency as regards the victim's age, the birth date was shown as 08.03.1999. He further contended that if the age of a victim is 5 to be ascertained even under the POCSO Act, one has to strictly follow Section 94 (2) of the Act of 2015.
7. The Learned Advocate appearing on behalf of the opposite party no. 2 opposed the application and adopted the submissions advanced on behalf of the State.
8. I heard the submissions of the Learned Advocates for the parties and perused the revisional application including the impugned order as well as the copy of the case diary produced on behalf of the State.
9. First, the decision relied on behalf of the petitioner in Ms. Eera (supra) does not seem to lay down a ratio that in all cases under the POCSO Act, the determination of age is to be done by medical examination. The said judgment, inter alia, provided that in case an examination of the victim under the POCSO Act was to be done, as per Section 27 of the said Act, the same was to be conducted in accordance with Section 164A of the Code. It further held that it was worthy to note that the legislature despite having the intent in its statement of Objects and Reasons and the long Preamble to the POCSO Act, had thought it wise to define the term "age" which did not only mention a child but added the words "below the age of 18 years".
10. Section 34 (2) of the POCSO Act provides that if any question arises about whether a person is a child or not, the same shall be determined by the Court after satisfying itself about the age of such person and recording 6 its reasons for such determination. Since the issue of determination of age of a person vis-a-vis whether he or she is a juvenile or a child or not is provided extensively and strictly under Section 94 (2) of the Act of 2015 and no other related law of the land provides for any procedure to the contrary, there is no harm in following the same procedure in determining the age of a victim in a trial under the POCSO Act. Moreover, Section 42A of the POCSO Act clarifies that the Act is in addition to and not in derogation of any other law. So, the Act of 2015 may very well be referred to. What is important here is that the Learned Court should be satisfied about the age so determined and should record its reasons for arriving at such satisfaction.
11. In the present case, PW 1 deposed that according to the Register of Birth and Deaths maintained by the concerned Panchayat, the birth date of the victim girl was 08.03.1999. The Learned Judge clarified that there was no overwriting as regards the year of birth. This recording was supported by other materials like School Registration Certificate and Admit Card. On the contrary, as regards the Register of Births and Deaths maintained by the Municipality, the initial corresponding to the relevant entry could not be recognized by DW 1. In any event, the concerned place of birth Champapukur fell outside the jurisdiction of the Municipality. So, the defence document did not evoke any suspicion sufficient to dispel the evidence adduced in support of the victim's date of birth of 08.03.1999. The Learned Judge analysed the evidence and other materials on record well, arrived at a satisfaction regarding the same, albeit in the light of Section 94 7 (2) of the Act of 2015, and recorded his satisfaction by way of a reasoned order.
12. I do not find any factual perversity or gross legal infirmity in the impugned order.
13. In view of the above discussions, the revisional application is dismissed. However, there shall be no order as to costs.
14. A copy of this order may be sent down to the Learned Court below forthwith.
15. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.
(Jay Sengupta, J)