Were two of the four accused in the Disha* gangrape and murder case and later killed in the Shadnagar encounter by the Hyderabad police in December 2019 minors? The judicial commission inquiring into the encounter killings in Hyderabad was informed by the kin of Jollu Shiva and Jollu Naveen that they were both minors as per their school records. The families claim the duo was born in 2002 and just 17 years of age at the time of their deaths. The Hyderabad police, however, insist that both Shiva and Naveen were majors based on their Aadhaar cards.
Chennakesavulu, Jollu Shiva, Jollu Naveen and Mohammad Arif were accused of the gangrape and murder of a Hyderabad-based veterinarian on November 28, 2019. They were arrested on December 4 and sent to 14-day judicial custody to Cherlapally Central Prison. If the two were minors, they should have been booked under the Juvenile Justice Act 2015 and sent to a government-run juvenile home, say legal experts. The four were gunned down and killed on December 6, 2019, allegedly while making an attempt to escape from the custody of 10 armed police officers. All four accused worked as truck drivers and cleaners.
Jollu Rajaiah, the father of Shiva has told the judicial commission that his son was just 17 years old at the time of his death. The family has produced a bonafide certificate from the school where Shiva had studied as proof of his age. Shiva, according to the bonafide certificate submitted to the judicial commission, was born on August 15, 2002. The father said that Shiva was born at home and did not have a birth certificate. Rajaiah insisted that the age on Shiva’s Aadhaar card is more than his original age, reported Times of India.
Jollu Lakshmi, the mother of Jollu Naveen also claims that her son was born in 2002 and was 17 at the time of his death. Both Shiva and Naveen studied at the Government Primary School in Gudigandla and are related. Shiva studied at school from 2008 to 2012 but then dropped out.
V Surender Rao, the state counsel representing the state, however, tells TNM that according to their Aadhaar both Shiva and Naveen were born in 2001 and they are both majors. As far as the bonafide certificate issued by the school, Surender alleges it cannot be trusted. “The school register appears to have been tampered with and has white markings on several places. Thus it can’t be trusted,” says Surender, “Also Shiva's name doesn’t match with the school register and the bonafide certificate. Because of the altered entry in the school register, we can't determine the age from the bonafide certificate,” he claims.
Maitreyi Krishnan an advocate practising with Manthan Law in Bengaluru, however, says a bonafide certificate from a school holds precedence over the age denoted in an Aadhaar card. The lawyer points to section 94 of the JJ Act 2015. Under the section a Juvenile Justice Board (JJB) is to carry out a preliminary assessment if a reasonable ground for doubt arises regarding juvenility. The process of age determination is done by seeking evidence by obtaining the date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination board or a birth certificate is given by a corporation or a municipal authority or a panchayat. In the absence of these documents, the age can be determined by an ossification test or any other latest medical age determination test.
“First of all, we have to check if the four accused had legal counsel while being presented before the magistrate after their arrest. It also has to be checked what the lawyer representing the accused has told the magistrate,” says Maitreyi. Anytime an encounter happens, the state is mandated to register a cognizable offence and thereafter set the criminal law in motion including immediately following the process of investigation into the offence, as ordered by the Andhra Pradesh High Court in the AP Civil Liberties Committee (APCLC) vs Government of AP case, the lawyer adds.
After their arrest on November 29, 2019, lawyer associations in Telangana had refused to extend legal aid for the accused. The Shadnagar Bar Association, the Ranga Reddy District Bar Council and Mahabubnagar Bar Council had denied any legal services to them. Later the District Legal Services appointed PV Krishnamachari, an advocate from Hyderabad as the counsel for the four accused. Krishnamachari was unavailable for comment.
Maitreyi says it’s important to ascertain whether the entire judicial process at the initial stages of arrest has been followed to the letter.
Surendar, on the other hand, says the family had not informed anyone that Shiva and Naveen were allegedly minors. “The magistrate was not told anything, if they were minors the magistrate wouldn’t have remanded them and instead sent them to a juvenile home as per the law. The family had also not raised any objection when the two were examined for potency as it was a rape case. They also did not object at the time of postmortem. The issue was also not raised with the magistrate who carried out the inquiry after the encounter,” the lawyer points out.
But what happens in the event that the two accused are found to be minors by the judicial commission? Would the quantum of punishment change? Lawyers say that a murder case under section 302 of the IPC is registered in police encounters, as was done in the Disha encounter case at the Shadnagar police station. But the punishment awarded to police officials if they are found guilty will be the same - punishable by a death sentence or life imprisonment with a fine as per Section 302 of IPC - irrespective of the age of the victims.
A Telangana High Court lawyer who requested anonymity says that any action against the Telangana police for the encounter killings and for the lapses in their investigation will depend on the state government. “The commission cannot determine the guilt of the accused. They can only give recommendations based on their findings. The state government can accept or reject these recommendations.” says the lawyer.
The judicial commission began its inquiry into the alleged encounter killings this September and is expected to submit its report by December this year or January next year. The judicial commission presently inquiring into the encounter deaths is headed by former Supreme Court judge Justice VS Sirpurkar. The commission comprises former judge of Bombay High Court RP Sondurbaldota and former CBI director DR Karthikeyan.