Gauhati High Court
Mahabur Islam @ Mahabur Eslam @ Rahman vs The State Of Assam And Anr on 8 December, 2023
Author: Suman Shyam
Bench: Suman Shyam
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GAHC010011512022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./11/2022
MAHABUR ISLAM @ MAHABUR ESLAM @ RAHMAN
S/O MD. ALI AHMED
VILLAGE BARKUR,
PS DALGAON, DIST DARRANG, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY PP ASSAM
2:MISS BANESA KHATON
D/O MATLEB ALI
VILLLAGE BARKUR
PS DALGAON
DIST DARRANG
ASSAM
78411
Advocate for the Petitioner : MR H R A CHOUDHURY
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
08.12.2023
(Suman Shyam, J)
Heard Mr. A. Ahmed, learned counsel for the appellant. Also heard Ms. B.
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Bhuyan, learned Addl. P.P., Assam appearing for the State. None has appeared
for the respondent No.2.
By the judgment dated 23.12.2021 passed by the learned Special Judge,
Darrang, Mangaldai in connection with Special (POCSO) Case No.24/2018 the
sole appellant herein was convicted under Section 4 of the POCSO Act and
sentenced to undergo rigorous imprisonment for 20 years and also to pay fine of
Rs.10,000/- with default stipulation. Aggrieved by the judgment dated
23.12.2021 the appellant has preferred this appeal.
During the pendency of the appeal, I.A(Crl.) No.360/2023 was filed by the
appellant/applicant raising the plea of juvenility for the first time before this
Court. Taking note of the plea of juvenility raised by the appellant, this Court, by
order dated 11.05.2023, had directed the learned Special Judge, Darrang,
Mangaldai to conduct an enquiry on the age of the applicant/appellant on
the date of occurrence and submit a report. Accordingly, after making
necessary enquiry, report dated 23.08.2023 has been submitted by the learned
Special Judge which is available on record. We have perused the report,
wherefrom, we find that the age of the appellant was 16 years 10 months on
the date of occurrence which took place on 01.02.2017. In other words, the
recorded date of birth of the appellant has been found to be 01.04.2000. The
aforesaid finding has been recorded by the learned Special Judge on the basis
of the school Admission Register, counterfoil of transfer certificate in respect of
the appellant as well as the oral testimony of the Headmaster of Dharanipur L.P.
School, who was allowed to be cross-examined both by the State as well as the
victim.
In the case of State of Chhattishgarh Vs. Lekhram reported in (2006)5 SCC 736
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the Supreme Court has held that school register though not conclusive
evidence, yet, the same would have an evidentiary value which can be
corroborated by oral evidence. In the present case, we find that the entries
made in the school Admission Register has been duly corroborated by the
Headmaster of the school. As per the school records, the date of birth of the
appellant is established. As per the recorded date of birth of the appellant
which is 01.04.2000, he was a juvenile on the date of the occurrence. Therefore,
we are of the opinion that the enquiry report dated 23.08.2023 is based on
cogent materials which come within the purview of Section 94 of the Juvenile
Justice (Care and Protection of Children) Act, 2015.
Although Ms. B. Bhuyan, learned Addl. P.P. has referred to and relied upon
recent decisions of the Supreme Court rendered in the case of P.Yuvaprakash
vs. State Rep. by the Inspector of Police [Criminal Appeal No.1898/2023] as well
as in the case of Rishipal Singh Solanki Vs. State of U.P. reported in (2022) 8
SCC 602, to submit that no certificate coming within the purview of Section 94
has been examined so as to ascertain the age of the appellant and therefore,
ossification test be performed, yet, we find from a careful reading of the
judgments that the same do not overrule the earlier decision of the Supreme
Court rendered in the case of Lekhram (supra). Rather, in the case of Rishipal
Singh Solanki (supra) it has been observed that the school record would have
to be considered as per Section 35 of the Evidence Act inasmuch as any public
or official document maintained in discharge of official duty which would have
a greater credibility than private documents. Ms. Bhuyan, has argued that the
school register is not a public document under Section 74 of the Evidence Act.
However, having regard to the law laid down in the case of Lekhram (supra)
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and Rishipal Singh Solanki (supra) we are of the view that the juvenility of the
appellant has been duly established in this case.
Since the appellant is presently in jail, we direct that the appellant be released
on bail on furnishing a bond of Rs.30,000/- and one surety of like amount to the
satisfaction of the learned Special Judge, Darrang, Mangaldai so as to allow
him to appear before the jurisdictional Juvenile Justice Board (JJB).
The appellant shall appear before the jurisdictional Juvenile Justice Board (JJB)
within 15 days from the date of his release from Jail on bail pursuant to the order
passed by this Court. The learned JJB may examine the appellant and pass
appropriate order under the law governing the future course of action in the
matter.
Let the appeal be listed again after six weeks, on which date the order, if any,
passed by the jurisdictional Juvenile Justice Board (JJB) be produced paving
the way for passing final order in this appeal.
JUDGE JUDGE
Comparing Assistant
