The New Nation - Internet Edition

(From previous issue)

Accordingly, a letter, was written, vide Memo No. 1382 cri dated 30-10-2004' for determining the age of the accused persons, Two reports, are found in the record which were sent from the Department of Forensic Medicine.: Khulna; Medical College, Khulna vide Memo No. KMC/FM/ML/ 2004/85 dated 18-11-2004 and No.KMC/FM/ML/ 2004/85 dated 18-11-2d04. These reports were not exhibited as the concerned medical officer has not come to the Tribunal to prove there reports and, as such, the reports were not taken into evidence. In these reports, the age of accused Rahamatullah was' shown above 19 years and the age of accused 'Md. Saltu was shown about 16 years and 6 months. As per law, the age of the accused is determined from the date of framing of charges against the 'accused: Charges in this case was framed on 29-4-2004 According to the medical report dated 18-11-2004 the age of accused Rahamatullah stands at 18 years 5 months 20 days and the age of Md Saltu stands at 15 years 11 months 20 days as on 29-4-2004 when the charges were framed. As per this medical report the accused Saltu is minor.

23. Mr Shamsul Alam, the learned Advocate for the appellant, submits that, the accused Rahamatullah has filed school certificate given by the Head Master in Elangi Mofizuddin Secondary School. As per that certificate, the date of birth of Rahamatullah is on 5.6-1989 and as per that certificate' the age of Rahamatullah stands at 15 years 11 month on 29-4-2004 on the date when the charge was framed against him. So, as per that school certificate, the accused Rahamatullah is minor on the date of framing charge on 29-4-2004.

24. It is to be mentioned here that this school certificate has not been exhibited as the head master did not come to prove it. So, this certificate cannot be taken into evidence at this stage of appeal. As per medical report, we lind that the age of Rahmatullah stands as 19 years 5 months 20 days as on 29-4-2004 when the charge was framed against him. So, we-' find two dates of birth of accused Rahamatullah. In this connection, the learned Advocate Alam for the appellants referred to the decision in the case of Arun Karmaker vs State reported in 2002 BLD (AD) 76 in which our Appellate Division held that the Radiologist's opinion cannot be preferred to positive evidence like school certificate.

25. In view of the above discussion, it is the duty of the trial Court to ascertain first whether, the appellants were major or minor in order to arrive at a decision as regard his jurisdiction but the learned Judge of Speedy Trial Tribunal did not apply his judicial mind in determining this issue first and avoided this issue nor did he mention any thing as regards the age of convict appellants in the order sheet or in his judgment.

26. After getting the report from the medical officer; it was the duty of learned Judge of Speedy Trial Tribunal to serve summons upon him to prove the medical report but he did not do so. It was also his duty to make attempt to prove the school certificate of' accused Rahamatullah summoning the head-master of the school to prove the certificate given by him. But the learned Judge without performing his legal duty in order to ascertain his jurisdiction he illegally convicted the accused persons under different terms as stated hereinbefore.

It further, appears from the medical report of accused Saltu that he was minor at the time of framing charge against him, though the age of other accused Rahamatullah was shown major. It is the established principle of law that there is no chance, of joint trial of youthful offender and all adult. No matter what offence is alleged, irrespective of seriousness of the act, a juvenile is to be tried separately from adults in accordance with provisions of the Children Act. Our courts have strictly interpreted this provision in a number of cases including the State, -vs Deputy Commissioner, Satkhira, reported in 45 DLR 643

27. In view of the above facts and circumstances, it appears to us that the learned Judge Speedy Trial Tribunal committed an error of law in not determining first the age of the accused in order to ascertain his jurisdiction. When his jurisdiction was questioned he ought to have decided this issue first. But the learned Court without ascertaining this issue, illegally proceeded to dispose of the case which is highly irregular also.

28. Since both the medical report and the school certificate have not been proved, so we refrain from passing any comment regarding the major or minor status of the appellants and this issue is to be decided at the trial giving the parties opportunity to adduce their respective evidence on this issue.

After ascertainment of this issue, if the accused persons were found to be below 16 years on the date of framing of issue, they are to be tried by the Juvenile Court. If one of them is found minor, then the case should be splitted up and the minor is to be tried by Juvenile Court and the major one should be tried by the Speedy Trial Tribunal. If both, are found majors, Speedy Trial Tribunal is to decide the case giving reasons on the basis of new evidence on the point of age and on the evidence taken earlier. The parties are at liberty to adduce evidence on the issue of age without reopening the case.

29. The appeal: therefore, succeeds.

30. In view of the above matter, we have no other alternative but to send the case back on' remand to the learned Speedy Trial Tribunal for ascertaining the age of the accused persons and to determine his jurisdiction first and to dispose of the case according to the provision of law and guide-lines, as stated hereinbefore.

31. In the result, the appeal is allowed and the impugned judgment and order dated 31-1-2005 passed by the learned Judge, Speedy Trial Tribunal, Khulna in Speedy Trial Tribunal Case No. 37 of 2004 convicting the appellants under various sections and sentencing them thereunder to suffer rigorous imprisonment for different terms as stated hereinbefore are set aside.

32. The case is sent back on remand to the Speedy Trial Tribunal, Khulna for a fresh hearing of the case in 'accordance with law' and in the observations made in the body of the judgment. The accused persons will remain in custody till disposal of the case.

In view of the fact that this is an old case, it is necessary, in the interest of justice, to be disposed of expeditiously. The learned Speedy Trial Tribunal Judge is directed to dispose of the case within 4(four) months from the date of receipt of the case records with notices to the contending parties.

Send down the records along with the copy of the judgment immediately.

(Concluded)