PRADEEP BORAH @ JOJI Vs. STATE OF KERALA

JUDGEMENT

(1.) 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 Nos. 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 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 Headmaster 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 Headmaster 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 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 contained in the documents produced before this court. The report also indicated that the team had visited the Headmaster of Nilakh Chapari High School, P.O.: Palengi Panch ali, Dist.: Dhemaji, Assam. But the Headmaster was not present and the person in charge of the Headmaster 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 Headmaster-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 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 months, 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.