- (1.) THE question is whether on the day of the alleged incident which is 29th of July, 2006 the petitioner was major or minor. In the event of his being a minor on that date the case as against him would fall for enquiry by the Juvenile justice Board under the Juvenile Justice (Care and Protection), 2000. In CRR no. 3760 of 2006 decided on 8. 3. 2007 Hon'ble Justice P. N. Sinha (as His lordship then was) directed the learned Magistrate to hold an enquiry for ascertainment or the age of the accused on the date of the incident. But because of insufficiency of sufficient material, more particularly because of the entry in the Registration Certificate issued by the Board of Secondary education, West Bengal, in the Pass Certificate of the Madhyamik Examination issued by the Board of Secondary Education, West Bengal containing in both of them the date of birth and in the Certificate of Birth issued by the Registrar of birth and Death, Bamongola Block, Malda allegedly being rootless the learned judicial Magistrate of Malda preferred to go by the report of the Ossification test conducted by a medical officer on 15. 9. 2006 according to which on the date of the radiological examination the age of the boy would be at least 20 years plus two and 20 years minus two. Thus, according to the learned magistrate the accused was major on the date of the commission of the incident.
(2.) I have heard the learned Advocates for the parties, have perused the medical examination report and the certificate of birth issued by the Registrar of Birth and Death, Registration Certificate and Pass Certificate issued by the board of Secondary Education, West Bengal vis-a-vis the order impugned. It is not that the evidence of the accused's parents who were examined by the learned Magistrate was inconsistent with the Birth Certificate issued by the registrar of Birth and Death, or the Registration Certificate and Pass Certificate of Madhyamik Examination issued by the Board of Secondary Education. It is not that the date of birth recorded in the Certificate of Birth issued by the registrar of Birth and Death is again inconsistent with the entry of date of birth in the Registration Certificate and the Pass Certificate of the Madhyamik examination issued by the Board of Secondary Education. And, if the evidence of the parents, the Certificate of Birth and Death, the Registration Certificate and the Pass Certificate of Madhyamik Examination by the Board of Secondary education, West Bengal are harmoniously constructed then obviously they would point to the fact of the minority of the accused on the date of the incident. It is common knowledge that the report of radiological examination can hardly provide an accurate clue to the date of birth of a person. When the doctor says that on the date of the examination the accused might be 20 plus two or 20 minus two then such a report can hardly help the Court to ascertain the age of the accused. When it is said that the accused was 20 plus 2 or 20 minus 2 at the date of examination of the accused then there develops a world of difference between the two. For if the accused is said to be 20 plus two then obviously he was major on the day of examination as also on the date of incident. On the other hand if he is 20 minus two on the day of examination then he would be around 18 on the date of examination which is 15. 9. 2006 and below 18 on the date of the incident. If he is below 18 on the date of the incident, considering that he is taken to be 20 minus two, on the date of medical examination then obviously he is triable by the Juvenile Justice Board. Now the learned Magistrate examined some eight witnesses but the crux of the matter is the question of authenticity of the entry of date of birth i. e. 17. 5. 1989 the date mentioned in the Pass Certificate as also the Registration Certificate issued by the Board of secondary Education, West Bengal in the Certificate of Birth issued by the registrar of Birth and Death. The Certificate of Birth which was produced before the learned Magistrate shows that it was issued on 29th of March, 1993 by the registrar of Birth and Death. As per the Certificate of Birth the date of registration was 31. 5. 1991. In order to ascertain whether the date entered into the Certificate of Birth issued by the Registrar of Birth and Death was a correct one or not the original registration volume was called for by the learned magistrate. Now in the Certificate of Birth the Registration No. was said to be 910 and accordingly the volume containing the entry No. 910 was called for but that page containing registration No. 910 related to entry of a date of birth of a different person. Therefore, learned Magistrate held that there is no genuineness of the Certificate of Birth as it does not tally with the volume containing the entry No. 910 and thus the learned CJM was of the opinion that such Certificate of Birth should not be relied upon and accordingly it was safer to go by the report of the Ossification Test which can be interpreted either in favour of the accused or in favour of the prosecution and the learned Magistrate in the instant case interpreted in favour of the prosecution and against the accused. Thus, inconsistency between the volume containing entry No. 910 in the Registration Book and the Certificate of Birth is the root cause of the problem. It has been argued by the iearned Advocates for the petitioner that when occurrence took place on 29. 7. 2006 either the accused was major or minor and it could not be disputed that he was born about two decades ago or more than one decade ago. The accused passed the Madhyamik Examination held in the year of 2006 and in the Madhyamik Certificate the date of birth was recorded as 17. 5. 1989 and in the Registration Certificate which was issued on 14. 9. 2005 the date of birth was recorded as 17. 5. 1989. When the Certificate of Birth was issued on 29. 3. 1993 it cannot be argued that the parents could foresee that their son would commit a murder in 2006 and accordingly became wise to mention fictitious date before the Registrar of Birth and Death. Definitely, the argument is not without force.
(3.) NOW when in the Registration Certificate and the Pass Certificate of the Madhyamkik Examination the date 17th May, 1989 was put there must have been some basis and according to the defence that basis is the entry of the date of birth in the Certificate of Birth issued by the Registrar of Birth and death of the Government of West Bengal. If the Certificate of Birth is just considered to be fictitious or the Certificate of Birth is totally decided to be discarded then some more reasonings are necessary beyond the reasoning that the registration No. 910 as noted in the Certificate of Birth does not tally with the registration book containing serial No. 910. If it is reasoned which has not been reasoned by the learned Magistrate that the certificate of birth itself is fictitious and is without any basis then it is one thing. It is not the same thing as simply saying that the entry No. 910 in the register does not correspond to certificate of Birth. This is a Government document issued by an officer statutorily authorized to issue such certificate. To my mind it is not impossible that mistake may occur in putting the entry number in the Government record.;