HIGH COURT SETS FREE A RAPIST CONVICTED FOR LIFE TERM

PANJIM: The high court of Bombay at Goa has held that a convict, who was sentenced in 2008 to undergo life imprisonment by the children's court, was a juvenile at the time of committing the offence. The court has set him free after he served seven years behind bars in the case of rape and murder of a minor girl at Betul in 2004.

In July 2008, the children's court held the accused guilty on the basis of DNA evidence, arrest of accused at the spot soon after the incident and recovery of his clothes containing human blood. The prosecution had charged the accused for killing the victim by strangulating her with a nylon rope on March 7, 2004.

Claiming that he was a juvenile, the accused challenged the children's court judgment before the high court in 2009. The convict demanded that an inquiry be conduced to determine his age as per the school records he was below 16 years. Subsequently, the high court directed the children's court to conduct the inquiry. On March 5, 2010, the children's court held that he was about 18 years of age on the date of commission of the offence and forwarded the inquiry report to the high court.

In its report, the childern's court noted that "there is no registration of date of birth with the concerned authorities, though due to illiteracy only the school records the same on oral information but that cannot be taken as sufficient proof". Thus, such school records do not show the accurate date of birth of the accused, the children's court stated.

During the hearing of the appeal, the accused's lawyer, J. A. Lobo, argued that during the trial the appellant had claimed that he was a juvenile. Referring to a transfer certificate issued by a school in favour of the appellant for admission from a primary school to a secondary school, Lobo said that school records show the accused's date of birth as July 12, 1987, and he had not completed 18 years of age on the date committing the alleged offence.

There is nothing on record which would indicate that the entries in the school register and transfer certificate relating to the date of birth are forged, Lobo stated. While pointing out that these documents were not created after the incident, Lobo contended that the children's court made an error in relying on the findings of the medical opinion and it overlooked the oral and documentary evidence.

On the other hand, public prosecutor C A Ferreira submitted that the rules provide for determination of the age by obtaining the birth certificate from the school (other than a play school) first attended, in the absence of a matriculation or equivalent certificate.

Ferreira said that no matriculation or equivalent certificate is available in the case. He contended that the register of the school, to which the appellant was subsequently transferred, cannot be considered as proof. While arguing that the accused had stated that he was 19 years old during the framing of charges, Ferreira said that no fault could be found with the children's court order with regards to the appellant's age.

Setting aside the sentence imposed on the accused, a division bench comprising Justice S C Dharmadhikari and Justice F M Reis observed thus: "In the instant case, the matriculation or equivalent certificate was admittedly unavailable. Therefore, the date of birth certificate from the school first attended can be relied upon. That certificate is the entry in the transfer certificate issued by primary school. The entry in the transfer certificate and that document itself is duly proved. This entry could be taken as a date of birth certificate in the present case." The court further observed that the entry was made in the transfer certificate.

The high court held that the accused had not completed 18 years of age on the date of committing the offence. The order of the children's court is wholly erroneous and ignores documentary and oral evidence on record, the court said.

"Once, the claim of juvenility has been upheld there cannot be a sentence of imprisonment for life. The juvenile already being in prison and kept behind bars for seven years, interest of justice would be served if this appeal is allowed by modifying the judgment and sentence and directing that the appellant be set at liberty," the court observed.