1 cri-appeal-422-09 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 422 OF 2009 Arjul Nepal Gazi .. Appellant (Org. Accd.No.4) Vs. The State of Maharashtra .. Respondent Dr. Yug Mohit Choudhari with Mr. N.M. Najmi for appellant. Mrs. A.S. Pai, APP for State. CORAM: B. H. MARLAPALLE & A. M. THIPSAY, JJ. MARCH 22, 2011. ORAL JUDGMENT (PER B. H. MARLAPALLE,J.): 1. The appellant was tried as accused no.4 in Sessions Case No. 363 of 2005 and as per the Judgment and Order dated 10/8/2006, the appellant along with accused no. 3 – Chhotu @ Asif Istraeel Shaikh and accused no.5 – Lambu @ Aminuru Ijul Gazi has been convicted and sentenced for the offence punishable under Section 302 read with Section 34 of IPC and the said order of conviction and sentence is under challenge 2 cri-appeal-422-09 in this appeal, which has been admitted on 6/4/2009. 2. Before the trial court, the appellant’s age was shown as 20 years and from the record it is clear that he was not treated to be a juvenile as defined under the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short “the Juvenile Justice Act, 2000). It appears that during the pendency of this appeal, the appellant, through the jail, submitted an application in Sessions Case No. 363 of 2005, claiming that he was a juvenile in conflict with law as on the date of the offence i.e. 3/6/2005 and, therefore, his age be determined by medical examination. This application was registered as Criminal Misc. Application No. 208 of 2009 in Sessions Case No. 363 of 2005. The Sessions Court appointed an Advocate to represent the appellant and notice was issued to the State Government, in response to which the learned Public Prosecutor appeared. 3. The appellant examined himself at Exh. 7 before the Sessions Court and stated that on the date of the offence i.e. on 3/6/2005 he was below 17 years of age, but he did not have any documentary proof of his date of birth, as he had never attended any school. Though his parents are alive, he did not examine anyone of them. By relying upon the scheme of 3 cri-appeal-422-09 Rule 12 (3)(b) of the Juvenile Justice (Care and Protection of Children) Rules 2007, the trial court ordered an ossification test to be carried our for the determination of the appellant’s age and he was sent to the Civil Hospital at Kolhapur. The court received the medical report stating that the appellant was examined on 17/2/2010 and by ossification test his age is determined at 20 years as on that date. The learned Additional Sessions Judge accepted the said report and held that as on 3/6/2005 the appellant was below the age of 18 years and thus a juvenile in conflict with law. 4. For the reasons stated in our order passed today in Criminal Appeal No. 423 of 2009, we accept the finding recording by the learned Additional Sessions Judge in Criminal Misc. Application No. 208 of 2009 and hold that the appellant was less than 18 years of age as on 3/6/2005. Consequently, the appellant being a juvenile in conflict with law as defined under Section 2 (l) of the Juvenile Justice Act, 2000, the order of sentence has to be set aside. It is also pertinent to note that the appellant by now has crossed the age of 18 years and, therefore, there is no need for him to be produced before the Juvenile Justice Board to undergo the sentence. Even otherwise, Dr. Choudhari states that by now the appellant has actually undergone the sentence of five years. 4 cri-appeal-422-09 5. By following the reasoning set out in our order passed today in Criminal Appeal No. 423 of 2009, we hereby set aside the sentence of life imprisonment awarded to the appellant in Sessions Case No. 363 of 2005 as the appellant was a juvenile on the date of the incident i.e. 3/6/2005. The appeal is partly allowed. We direct that the appellant be released forthwith unless required to be detained in any other criminal case. (A. M. THIPSAY, J.) (B. H. MARLAPALLE, J.)