1 APEAL 133.07.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL APPEAL NO. 133 OF 2007 Lambu @ Aminuru Ijul Gazi. ... Appellant. V/s. The State of Maharashtra & Anr. ... Respondents. Dr. Yug Mohit Chaudhary i/b. Ms. Tasmeen E. Kanthawala for the Appellant. Mr. J.P. Yagnik, APP for the State. CORAM : NARESH H. PATIL & K.U. CHANDIWAL, JJ. RESERVED ON : 1st AUGUST 2011. PRONOUNCED ON : 5th AUGUST 2011. (Per Chandiwal, J.) :- The Accused No.5 Lambu @ Aminuru Ijul Gazi in his Appeal has urged for benefit in terms of Juvenile Justice (Care and Protection of Children) Act, 2000. 2. The Accused – Appellant was tried as Accused No.5 in Sessions Case No.363 of 2005 alongwith other accused persons and he was convicted and sentenced for the offence punishable under Section 302 r/w. 34 of I.P.C. by Judgment dated 10th August 2006. The said order of conviction is questioned in the present Appeal. Before the learned 2 APEAL 133.07.sxw Sessions Judge, while recording plea on 23.11.2005, age of the Appellant was recorded as 19 years and on the date of Judgment dated 10th August 2006, it was the same age referred. 3. Miscellaneous Application No.61 of 2010 was moved before the learned Additional Sessions Judge at Thane. Before the learned Judge, Appellant’s evidence was recorded at Exhibit 6 showing his date of birth as 8.3.1998. Mother of the Appellant was also examined to endorse the birth date. The entry of birth of the Appellant was taken in the relevant record of the panchayat. The Appellant studied at Dakshin Debipur F.P. School, Post Mominpur, West Bengal and the admission register produced before the learned Judge showed that the date of birth recorded was 8.3.1988. The Appellant was referred for ossification test to the Civil Surgeon, Civil Hospital, Thane. The learned Civil Surgeon, Thane carried the ossification test and the report at Exhibit 16 illustrate that on such date i.e. 28.02.2011, the Appellant would be 22 years and less than 23 years. 4. It was argued that even if on 28.2.2011, the age of the Appellant is considered as 22 years, then, as on 3.6.2005 (the date of offence) his age would come to 16 years 4 months and 3 days. In any case, the age of the Appellant was pointed to be below 18 years on the date of offence dated 3.6.2005. 3 APEAL 133.07.sxw 5. Though the Appellant did not agitate about his juvenality before the learned Sessions Court during trial, however, that by itself will not defuse his rights to claim juvenality, if record supports him. 6. The learned Additional Sessions Judge accordingly held that age of the Appellant was below 18 years and therefore, he was a juvenile as defined in Section 2(k) of the Act of 2000, on the date of offence. 7. The Government of Maharashtra, Women and Children Development Department, by notification dated 11th January 2011, carried certain amendments in the rules of 2002. The new rules are named as Maharashtra Juvenile Justice (Care and Protection of Children) Rules, 2011. Rule 8(g) thereof contemplate age determination. The parameter given therein, concerning the evaluation of the age fits in the age certificate issued by the School Authorities, the ossification test and even oral examination of Appellant by the learned Additional Sessions Judge. 8. Dr. Chaudhari, learned Counsel for the Appellant stressed to accept the observations of the learned Additional Sessions Judge recorded on 11th March 2011 in Criminal Misc. Application No.61 of 2010. We do not find any conflict to accede to such request to endorse with approval the order below Exhibit 1 in the above referred application. 4 APEAL 133.07.sxw 9. Consequent to order passed by this Court on 7th April 2011, Head Master Mr. Shawkat Ali, Dakshin Debipur, F.P. School, Post Mominpur, West Bengal, produced original record of school admission register as on 20th June 2011. Mr. Chatterji, an Advocate interacted with the said Head Master as the former did not know Hindi. The record was perused by this Court and it is endorsed that the birth certificate of the Appellant – Lambu @ Aminuru Ijul Gazi is based on the certificate to this effect issued by the Rajendrapur Gram Panchayat. The investigator was also permitted to visit the said school and verify the record. No controversy or disputable situation has emerged. 10. On 26th July 2011, during the course of submissions, the learned APP raised an issue that it is necessary to ascertain as to on what basis clinical and radiological examination certificate was issued by the Civil Surgeon, Thane on 3rd February 2011. Consequent upon such directions, the learned Civil Surgeon, Thane remained present before this Court on 1st August 2011. The record was again verified by the Court and the learned APP. The Civil Surgeon confirmed the carrying of ossification test in respect of Appellant No.5, as per the official record. 11. The accused – Appellant is in custody on date of offence and has virtually undergone imprisonment of more than 5 years. 5 APEAL 133.07.sxw 12. In the light of above discussion, we do not find any inconsistency anywhere to doubt the age proof of the Appellant establishing that he was born on 8.3.1988 and was below 18 years on the date of offence. The Appellant is thus a juvenile in conflict with law. 13. We confirm the conviction recorded against the Appellant by the learned Additional Sessions Judge, Thane in Sessions Case No.363 of 2005, dated 10th August 2006. We set aside the sentence of life imprisonment. The accused - Appellant shall be released forthwith, if he is not required in any other case. Appeal is partly allowed in the above terms. (K.U. CHANDIWAL,J.) (NARESH H. PATIL,J.)