1 ndm 22-appln.2294.06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2294 OF 2006 Ms. Lorraine E. Black, sister of deceased Mrs. Sandra Anne Franklin. ... APPLICANT Vs. The State of Maharashtra and anr. ... RESPONDENTS -------- Mr. R.K. Dharia and Surendra Vishwakrma for Applicant. Mr. S.A. Shaikh, APP for State. Mr. Anil Lala i/b Lalla and Lalla for Respondent No.2. -------- CORAM : B.R. GAVAI, J. DATE : 23 rd March, 2010. P.C. 1 The Applicant challenges the order passed by the Additional Sessions Judge, Mumbai dated 10 th May, 2006 in Miscellaneous Application No. 1118 of 2005 in Sessions Case No. 1026 of 2004 thereby holding that the Respondent No.2 is a juvenile offender and therefore, the Jailor of Arthor Road Jail is directed to transfer him to remand home and the Investigating Officer to file charge-sheet against him in the Juvenile Court. 2 2 On the basis an allegation that Respondent No.2 herein alongwith other accused committed house trespass, dacoity and murders in the house of Mrs. Sandra Anne Franklin, who is the sister of the Applicant, Crime No. 172 of 2004 came to be registered for the offences punishable under Sections 452, 302, 396 and 34 of the Indian Penal Code. Since the offence was exclusively triable by the Sessions Court, the matter was committed to the learned Sessions Court. In the said proceedings, an application came to be filed that since the Applicant was a juvenile, the proceedings therefore, insofar as the said Applicant is concerned, should be transfered to the Juvenile Court. The said application is allowed by the impugned order. Hence the present Application. 3 The learned counsel for the Applicant submits that from the record, it is clear that since the Accused/Respondent No.2 at the relevant time was employed with the deceased as a driver, he was admittedly more than 18 years of age on the date of employment and therefore, could not have been a juvenile offender on the date of the incident. The learned counsel submits that as such in view of the judgment of the Apex Court in the case of Om Prakash Vs. State of Uttaranchal (2003) 1 SCC 648, the order passed by the learned Sessions Judge is not sustainable in law. 3 4 The learned counsel for the Respondent No.2-Accused on the contrary submits that from the material on record, the learned Sessions Judge has rightly come to the conclusion that on the date of the offence, the Applicant was a juvenile offender and therefore, no interference is warranted in the present case. 5 The learned Sessions Judge while passing the order impugned has relied on the certificate, which was issued by the Panchayat Secretary of Village Panchayat, where the said accused was born. The said birth certificate was showing his date of birth as 22 nd May, 1988 and as such as per the said certificate, he was 17 years and 4 months of age on the date of the offence. However, since the said certificate could not be considered as conclusive evidence, the said accused was referred to the medical board for determination of his age. As per the medical report, on the basis of ossification test on 20 th December, 2005, he was found to be 19 to 20 years of age. It is to be noted that the medical examination was conducted after a period of about 1 year and 3 months from the date on which the offence had taken place. The learned Sessions Judge after relying on the judgment of the Apex Court, after giving the benefit of an error of 6 months on either side, found that the Applicant was below the age of 18 years on the date of the incident. 6 Not only this, the learned Judge prior to arriving at such a 4 finding also recorded the statement of the mother of the said accused and after considering her evidence, found that the Applicant was below the age of 18 years. 7 Insofar as the driving licence is concerned, the learned Judge found that it was within everybody’s knowledge that to get a driving licence at the earlier age, many persons make false submissions about their age. It therefore, seems that the finding arrived at by the learned Sessions Judge is on the basis of appreciation of the material, which was placed before her and it cannot be said that the finding has been recorded in a perverse manner. Insofar as the judgment of the Apex Court (cited supra) on which the learned counsel for the Applicant relies is concerned, it can be seen that in the said case, it was found that apart from a submission that in view of the statement recorded under Section 313 of the Criminal Procedure Code, the accused should be considered as a juvenile on the date of the incident, nothing was placed on record by the accused / Applicant herein. The Apex Court has observed thus :- “Apart from the fact that on behalf of the applicant no proof was adduced regarding his age, the High Court noted that he admittedly opened the bank account in Panjab National Bank at Dehradun on 9-3-1994”. It can further be seen that in the said case, the trial Court so also the High Court had concurrently rejected the claim of the accused therein to be a juvenile offender. The accused has placed on record his birth 5 certificate issued by the Village Panchayat. The learned Judge before arriving at a finding has got the Applicant medically examined and has relied on the report of the Medical Officer on the basis of ossification test. Not only this, but the learned Judge has even taken precaution of examining the mother of the applicant prior to passing the impugned order. 8 In that view of the matter, no case is made out for interference. Hence, rejected. [ B.R. GAVAI, J ]