ABHILASH Vs. STATE OF KERALA

JUDGEMENT

(1.) This is an application filed by the first appellant/accused seeking suspension of sentence. The petitioner is the first accused in Sessions Case No.129/2015 of the Court of Sessions, Palakkad. By judgment dated 11/4/2019, petitioner along with another accused had been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.4,00,000/- each with default sentence of rigorous imprisonment for four years each for the offence punishable u/s 302 r/w S.34 of I.P.C. They are also sentenced to undergo rigorous imprisonment for 10 years each for the offence u/s 397 r/w S.34 of I.P.C. While seeking for suspension of sentence, the petitioner had produced a birth certificate as Annexure A thereby indicating that he was born on 29/11/1992 and as on the date of commission of offence, i.e., on 2/6/2010, the petitioner was a juvenile as he has not completed the age of 18 years. It is therefore contended that the entire trial process including the conviction and sentence imposed on the petitioner is vitiated and the judgment is non est in law and he is entitled to have the conviction and sentence imposed against him dislodged. Though several other grounds had also been indicated in the application, no other grounds were urged by the counsel for the appellant. Annexure A apparently is a birth certificate issued by the Secretary, Registrar of Birth and Death, Pallassana Grama Panchayat. The date of birth of one Abilash whose mother's name is Kumari and father's name is Balasubramanian having their address at Kollanpotta, Pallassana is stated to be on 29/11/1992. The date of registration was 2/12/1992.

(2.) The Public Prosecutor has filed an objection inter alia producing a report from the Inspector of Police, Town Police Station. The certified extract of the birth certificate is also produced as Annexure II(a). It is however contended that as per the admission register received from the Headmistress of ALP School, Pallassana, the date of birth of the petitioner is recorded as 30/5/1992. The extract of admission register from V.I.M.H.S.S, Pallassana is also produced which indicates that the date of birth of Abhilash B., is 30/5/1992. The election ID and aadhaar card of the petitioner also indicate the date of birth as 30/5/1992. The learned Public Prosecutor therefore argued that in the light of the judgment of the Apex Court in Jarnail Singh v. State of Haryana [(2013) 7 SCC 263], the age of juvenile has to be determined primarily on the basis of the school records and only if such documents are not available, other broader proof including the birth certificate need be considered. In Jarnail Singh (supra), the Apex Court observed that for determining the age of a minor, only a reference to Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 is required. Paragraphs 22 and 23 are relevant which reads as under;

(3.) It could therefore be seen that though the birth certificate given by a competent authority is also one among the documents that could be relied upon to ascertain the age of a juvenile, the certificate issued by the Panchayat need be considered only if the other documents are not available. Apex Court observed that the high rated option available will conclusively determine the age of minor. If the said certificate is available, no other evidence can be relied upon. In the absence of the high rated certificate, which is matriculation or equivalent, Rule 12(3) envisages consideration of date of birth entered in the school first attended by the child. If that is available, it has to be treated as final and conclusive and no other material is to be relied upon. Only when such evidence is not available, birth certificate issued by Panchayat need be considered for determining the age of the juvenile. In fact, the Rules have subsequently been incorporated into the statute in a modified form under Section 94, when the 2015 Act came into force. S.94 reads as under:-