1 9 appa.975.07 ors ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1567 OF 2004 WITH CRIMINAL APPLICATION NO. 975 OF 2007 Omprakash @ Prakash Kunnuram Choudhari. ... Appellant Vs. The State of Maharashtra. ... Respondent WITH CRIMINAL APPEAL NO. 706 OF 2005 Santosh @ Santu s/o Jagasharan Pandey. ... Appellant Vs. The State of Maharashtra and ors. ... Respondents ----- Mr. Ganesh Gole with Ms. Rashmi Gagawani for the Applicant. Mr. P.A.Pol, PP for the State. ----- CORAM : A.M. KHANWILKAR and P.D. KODE, JJ. DATE : 29 th October, 2010. P.C. 1 The accused No.1 - Omprakash @ Prakash Kunnuram Choudhari was convicted for offence punishable under Section 302 read with 34 of the Indian Penal Code alongwith Accused No.2 - Santosh @ Santu s/o Jagasharan Pandey and ordered to undergo sentence of imprisonment for life and to pay fine of Rs.5,000/- each. In addition, both the accused were found guilty of offence punishable under Section 392, 397, 452 read with 34 of the Indian Penal Code and Section 37 read with 2 9 appa.975.07 ors 135 of Mumbai Police Act. Against the order of conviction and sentence, both the accused have filed appeal before this Court. The appeal filed by The accused No.1 – Omprakash has been numbered as Criminal Appeal No. 1567 of 2004 whereas appeal filed by accused No.2 – Santosh is numbered as Criminal Appeal No.706 of 2005. Both the appeals are admitted and pending for final hearing. During the pendency of this appeal, the original accused No.1 – Omprakash took out application being Criminal Application No.975 of 2007 contending that he was juvenile in conflict of law on the date of incident in question. Reference was made to ascertain the correctness of the said plea taken by the original accused No.1. After due inquiry, report has been submitted by Additional Sessions Judge, Greater Mumbai dated 12 th July, 2010 stating that the original accused No.1 – Omprakash was about 16 years, 3 months and 25 days on the date of commission of offence in question. On this finding, it necessarily follows that original accused No.1 was juvenile in conflict with law within the meaning of the Juvenile Justice (Care and Protection of Children) Act, 2000. If it is so, considering the provisions of the said enactment and the recent decision of the Constitution Bench of the Apex Court in the case of Pratab Singh Vs. State of Jharkhand and anr reported in 2005 (2) Bombay Cases Reported (Criminal) 485, the original accused No.1 will have to be released on completion of three years of his sentence period. Admittedly, the original accused No.1 has already undergone 8 years of sentence period in connection with the offence in question. In that view of the 3 9 appa.975.07 ors matter, the appeal filed by the original accused No.1 – Omprakash being Criminal Appeal No. 1567 of 2004 can be disposed of on the above basis and the said original accused No.1 will have to be ordered to be released forthwith subject, however, to ascertaining whether he is required in connection with any other criminal offence. 2 In view of the disposal of the appeal being Criminal Appeal No.1567 of 2004 filed by original accused No.1 - Omprakash @ Prakash Kunnuram Choudhari, the Criminal Application No. 975 of 2007 does not survive for consideration. Both these proceedings are disposed of on the above terms. 3 It is however made clear that Criminal Appeal filed by the original accused No.2 - Santosh @ Santu s/o Jagasharan Pandey being Criminal Appeal No. 706 of 2005 shall proceed as per its turn for hearing. [ P.D. KODE, J ] [ A.M. KHANWILKAR, J ]