Gauhati High Court
Rabiram Das vs The State Of Assam on 16 August, 2023
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GAHC010171652023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/687/2023
RABIRAM DAS
S/O SRI SABIR DAS, R/O VILLAGE KHARUAJAN, P.S. BARMA, DISTRICT.
BAKSA, ASSAM.
VERSUS
THE STATE OF ASSAM,
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR J KALITA
Advocate for the Respondent : PP, ASSAM
Linked Case : CRL.A(J)/31/2022
PRAFULLA DAS
BAKSA
ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP
ASSAM.
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Advocate for : MR. B BHAGAWATI
AMICUS CURIAE
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : 16.08.2023
(Michael Zothankhuma, J)
Heard Mr. J. Kalita, learned counsel for the applicant and Ms. S. Jahan,
learned Additional Public Prosecutor.
2. This application has been filed under Section 391 Cr.P.C. for recording
further evidence for determining the juvenility of the applicant. The applicant
herein i.e. Rabiram Das, had been convicted vide judgment dated 16.11.2021
passed by the learned Sessions Judge, Baksa, Mushalpur in Sessions Case No.
233/2018 under Section 302/34 IPC. He was thereafter sentenced to rigorous
imprisonment for life with a fine of Rs.1,000/-, in default rigorous imprisonment
for two months for the offence 302/34 IPC.
3. The applicant's counsel submits that the issue of the juvenility of the
applicant had been raised by the applicant prior to the case being committed to
the learned Trial Court, vide application No. 480/2012. However, the application
was dismissed by the learned Judicial Magistrate First Class, Nalbari vide order
dated 21.04.2012.
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4. The learned counsel for the applicant submits that the evidence of
headmistress of Kharua Anusustia Jatiya Bidyalaya School shows that she had
written the date of birth of the applicant as 16.11.1993, in the applicant's school
certificate, without any birth of date being mentioned in the admission register
of the school.
5. The learned counsel for the applicant thus submits that determination of
the age of the applicant should be done in terms of Section 391 Cr.P.C. read
with Section 94 of the Juvenile Justice(Care and Protection of Children)Act,
2015(herein referred to as 2015 Act).
6. Ms. S. Jahan, learned Additional Public Prosecutor, on the other hand,
submits that the age of the applicant in the arrest memo made on 18.04.2011
shows that the applicant was 19 years of age. Further, the form wherein the
applicant was examined under Section 313 Cr.P.C., shows that the applicant was
30 years on 23.09.2021. As such, the applicant would have been 19 years on
the date of occurrence of the incident, i.e. on 17.04.2011. She thus submits that
the application should be rejected.
7. We have heard the learned counsels for the parties. We have noticed that
the applicant had raised the issue of juvenility before the learned Judicial
Magistrate First Class, Nalbari vide application No. 480/2012 and vide order
dated 17.04.2012, the Headmistress of Kharua Anususita Jatiya Bidyalaya was
asked to produce the admission registrar and to appear before the learned
Court on 21.04.2012. The Headmistress Ms. Nomali Boro was also examined on
21.04.2012 wherein she stated that she had written the applicant's date of birth
as 16.11.1993, on being told of the same by the mother of the applicant.
However, there was no date of birth of the applicant mentioned in the admission
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register of the school. The learned court thereafter observed that there was
nothing concrete to suggest that the applicant was a minor on the date of
committing of the offence and that the school register created a doubt as to the
authenticity of the entry made in relation to the applicant, as there was a
difference in the handwriting, relating to the entry in his name vis-a-vis the
entries of the other students. Further, while the entry in the other pages of the
school admission register showed that the students were admitted at the age of
6 years and above, the entry of the applicant showed him to be 5 years. The
learned Court thus held that there was a reasonable doubt created in the mind
of the Court as to the plea of juvenility taken by the applicant. The application
of the applicant was thereafter rejected vide order dated 21.04.2012 passed by
the Judicial Magistrate First Class, Nalbari and the case was then committed to
the learned trial court for taking cognizance and trial.
8. Subsequent to the above facts, the applicant has not taken any plea
during trial that he was a juvenile. The applicant has also never made a
challenge to the order dated 21.04.2012 passed in application No. 480/2012 till
today. As such, the order has attained finality as on date. The applicant has also
not annexed any document before us, to show that he was a juvenile at the
time of the incident, i.e. on 17.04.2011. The certificate issued by the
headmistress of the school was also never exhibited before the learned trial
court. The plea of juvenility having been rejected on 21.04.2012 by the Judicial
Magistrate First Class, Nalbari, the applicant should have taken up the issue
before the learned trial court. However, the issue was never taken up by the
applicant before the learned trial court and he has only brought up the issue
after 11 years, vide the present application which was submitted on 04.08.2023.
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9. In view of the above reasons, we are not inclined to allow the present
application. The application is accordingly dismissed.
JUDGE JUDGE
Comparing Assistant
