1 APPA 744-2011 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.744 OF 2011 IN CRIMINAL APPEAL NO.773 OF 2011 Sonali Balu Kumbhar .Applicant V/s. The State of Maharashtra .Respondent Ms Rebecca Gonsalvez, Advocate, for the Applicant Mr.Rajesh More, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. DATE : 2ND AUGUST, 2011 P.C. . Heard the learned Counsel for the respective parties. The applicant was tried as accused No.3 by the learned Additional Sessions Judge, Pune for the offences punishable under Sections 363, 366A, 376, 506 read with Section 34 of the Indian Penal Code and under Sections 3, 4 & 5 of the Prevention of Immoral Traffic Act. She was convicted for the offences punishable under Sections 363 & 366A of the Indian Penal Code and Section 5 of 2 APPA 744-2011 the Prevention of Immoral Traffic Act. She has been sentenced to suffer R.I. for seven years on two of the three counts and R.I. for five years on one of the counts. The applicant claims that on the date when the offence was committed i. e. between 3rd October, 2009 till 11th October, 2009 she was a juvenile below the age of 18 years. She has filed a copy of School Leaving Certificate which shows a date of birth to be 21st May, 1992. On 15th July, 2011 this Court directed the prosecution to check up the authenticity of the School Leaving Certificate and also subject the applicant to medical examination by Radiologist to ascertain her age. The learned APP states that though he personally tried to contact the officer concerned to check up the authenticity of the School Leaving Certificate, the officer concerned from the Faraskhana Police Station could not respond. However, the convict had been sent for medical examination by the Superintendent, 3 APPA 744-2011 Yerwada Central Prison and the learned APP has made available for my perusal the Medical Certificate received by him from Department of Forensic Medicine, B.J.Medical College, Pune which shows that on 30th July, 2011 the applicant was above 19 years and below 21 years of age. The learned Counsel for the applicant submits that the rules under the Juvenile Justice Act (JJA), 1986 were amended by the Juvenile Justice(Care and Protection of Children) Act 2000 whereby rule 8G as to the age determination has been inserted in the original rule under sub-rule (5) of the said rule reads as under :- "(5) If the documents mentioned in sub-rule(2) are not available or the document submitted is not found to be authentic, the age of the person shall be determined by seeking the medical opinion of hospitals authorized by the Government. On the basis of the medical opinion, the Board or the Committee or Any Court shall record a finding of age, which shall be conclusive proof of age regarding that juvenile or child. In case exact assessment of the age cannot be done, the Board or the Committee or any court for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. 4 APPA 744-2011 Therefore, according to the learned Counsel for the applicant, even as per the Medical Certificate, the applicant was below the age of 18 years on the date when the offence was committed and therefore, has to be declared to be juvenile in conflict with law. Consequently, the sentence, if any, passed would have to be held to have no effect. 2. In view of this, Application and Appeal both stand disposed of holding that the applicant was juvenile in conflict with law on the date of commission of offence and therefore, in terms of provisions of Section 7A of the Act, the sentence passed shall be deemed to have no effect. The applicant be set at liberty forthwith. The authorities would be at liberty to take the appropriate action under the Juvenile Justice Act. (R.C.CHAVAN, J.)