1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO.60 OF 2009 Radhabai Lahanu Parekar, Aged 28 years, Residing at Mukam Post Kordechi Wadi, Taluka Kej, Zilla Beed, Presently in custody in the Yerwada Central Prison, Yerwada, Pune 411 006. ... PETITIONER VERSUS 1. State of Maharashtra, At the instance of Georai PoliceStation. 2. State of Maharashtra through the Home Department, Govrnment of Maharashtra, Mantralaya, Mumbai – 400 032. ... RESPONDENTS ----- Ms. Rebecca Gonsalvez, Advocate for the petitioner Shri K.B. Choudhari, A.P.P. for the respondents ----- 2 CORAM : NARESH H. PATIL AND SHRIHARI P. DAVARE, JJ. DATED : 11th September, 2009. ORAL JUDGMENT ( PER PATIL, J.): 1. Heard. Rule. Rule made returnable forthwith. With the consent of parties, taken for final hearing. 2. The petitioner Radhabai Lahanu Parekar was convicted for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and was sentenced to suffer life imprisonment in Sessions Case No.42/1994 by Additional Sessions Judge, Beed by judgment and order dated 23.8.1994. The date of incident was 22.1.1994. The petitioner committed murder of her husband. 3. Being aggrieved by the judgment and order passed by learned Additional Sessions Judge, Beed, the petitioner preferred Criminal Appeal to the High Court, bearing Criminal Appeal No.541/1996. By judgment and order dated 30.7.2001, the Division Bench of Bombay High Court, Bench at Aurangabad (Coram : Vishnu Sahai & A.S. Bagga, JJ.) dismissed the appeal of the petitioner. The petitioner was convicted by the trial Court for an offence punishable under Section 302 read with Section 34 3 of the Indian Penal Code along with another accused namely Sanjay Eknath Gade, who had filed separate appeal bearing Criminal Appeal No.325/1994. The Division Bench allowed the appeal filed by Sanjay. The judgment and order of conviction and sentence imposed by the trial Court on Sanjay was set aside and he was acquitted of the charge. 4. The learned counsel for the petitioner Ms. Rebecca Gonsalvez informs this Court that the petitioner did not prefer any further appeal to the Apex Court against the judgment and order of this Court, of dismissal of her appeal. 5. The petitioner filed this Writ Petition on 19.1.2009 seeking declaration that she is a “juvenile in conflict with law” with further prayer to quash and set aside the sentence imposed on the petitioner by the Additional Sessions Judge, Beed in Sessions Case No.42/1994 on 23.8.1994. According to the learned counsel, the petitioner was arrested in connection with the crime on 22.1.1994 and since then the petitioner is in jail. It is informed that during trial the petitioner was not released on bail. 6. The learned counsel for the petitioner placed reliance on the provisions of Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the 4 Act of 2000 for short) as amended in 2006 w.e.f. 22.8.2006, whereby provisions of Section 7-A were introduced by the Juvenile Justice (Care and Protection of Children) Amended Act, 2006 (33 of 2006). Section 7-A reads as under : “7-A. Procedure to be followed when claim of juvenility is raised before any Court. --(1) Whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is juvenile or a child or not, stating his age as nearly as may be; Provided that a claim of juvenility may be raised before any Court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the Court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence, if any, passed by a Court shall be deemed to have no effect.” 5 7. Reliance was placed on the provisions of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the Rules 2007 for short). Rule 12 reads as under : 12. Procedure to be followed in determination of age :-- (1) In “ every case concerning a child or a juvenile in conflict with law, the Court or the Board, as the case may be, the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The Court or the Board or, as the case may be, the Committee shall decide the juvenility or otherwise of the juvenile or the child or, as the case may be, the juvenile in conflict with law, prima facie on the basis of physical appearances or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -- (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. We find it necessary here itself to refer to Section 6 of the Act, which refers to powers of Juvenile Justice Board, Section 6 reads as under : “6. Powers of Juvenile Justice Board.-- (1) Where a Board has been constituted for any district, such board shall, notwithstanding 6 anything contained in any other law for the time being in force but save as otherwise expressly provided in this act, have power to deal exclusively with all proceedings under this Act relating to juvenile in conflict with law. (2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise. “ 9. In exercise of powers conferred by Section 68 of the Act of 2000, the State of Maharashtra framed rules namely Maharashtra Juvenile Justice (Care and Protection of Children) Rules 2002. The learned counsel for the petitioner informed that after Amendment Act of 2006, the State of Maharashtra has not yet framed new rules or amended the Rules of 2002. According to the learned counsel, in accordance with the provisions of Section 68 of the Act of 2000, the model rules framed by the Central Government would continue to operate till the State amends or frames rules in conformity with the amended provisions of the Act of 2000. 10. The petitioner has placed on record a School Leaving Certificate, issued by the Head Master of Zilla Parishad Primary School, Kacharwadi, Taluka Kaij, District Beed, dated 20.9.1994 at Exhibit E. In Column No.5 of the certificate, the date of birth of 7 the petitioner is mentioned as 14.8.1980. In Column No.7, it is mentioned that petitioner was admitted in the school on 15.7.1987. In view of the provisions of Rule 12, sub-rule (3) (a) (iii), which, according to the counsel, the petitioner has produced evidence regarding her date of birth, which would be conclusive proof of the age as regards the juvenility of the person. By an order dated 18.2.2009, this Court had directed the learned A.P.P. appearing for the State to seek assistance of police and ascertain the date of birth of the petitioner by adopting appropriate enquiry which must reflect in the reply to be filed by the State. By an order dated 5.3.2009, notice was issued to the Head Master, Zilla Parishad Primary School, Kacharwadi, Taluka Kaij, District Beed, directing him to produce the original record such as school admission register for perusal of the Court. By an order dated 13.3.2009, the Division Bench further directed the learned Advocate for the petitioner to produce some proof, that Radhabai d/o Satibhan Korde was a maiden name of the petitioner. 11. By order dated 28.8.2009, we had directed the Superintendent, Yerwada Central Prison to get ossification test of Radhabai conducted from the competent authorities of Sasoon Hospital, Pune at the earliest and submit report through the Public Prosecutor, High Court, Aurangabad to this Court in a sealed cover. Accordingly, report was submitted before this Court in the 8 prescribed proforma for age examination, signed by Dr. A.B. Shinde, dated 28.8.2009. The conclusion reached after the ossification test conducted by the Medical Officer states that, “from clinical and radiological examination, the age of the patient on 28.8.2009 is about 25 years and below 35 years.” 12. On behalf of the State, Devidas Ganpatrao Ahankare, Police Head Constable, Police Station, Kaij has filed affidavit-in- reply. The deponent averred that he had visited village Kacharwadi and recorded statement of Satibhan Yeshwanta Korade who is father of the petitioner, who stated that he has two sons and one daughter namely Dilip, Radhabai and Pandit. The date of birth of the children were not registered in the Gram Panchayat record at the time of school admission, the teacher recorded the date of birth on his own accord. It was stated that after 5 years of birth of Dilip, petitioner Radhabai was born and after 5 years of birth of Radhabai, Pandit was born. As he was illiterate, he had not recorded the date of birth of the children in the office of Grampanchayat. The deponent further stated that the father was not aware, as regards the exact date of birth of the children and the date of birth which was mentioned in the school record. According to the father, the petitioner was married on 12.3.1992. In substance, the deponent submitted that there is no conclusive proof of age of the petitioner than the one which is 9 reflected in the school record. Therefore, the respondents raised doubts regarding the conclusiveness of the age of the petitioner based on the school leaving certificate and claimed that further enquiry is required to ascertain the date of birth of the petitioner. 13. The father of the petitioner Satibhan Yeshwanta Korade filed affidavit in this Court on 29.6.2009 wherein he has stated that the petitioner Radhabai was born on 14.8.1980 and was married on 12.3.1992. After her marriage to Lahanu Anjinath Parekar, her full name got changed to “Radhabai Lahanu Parekar” and she continued to be known by that name. According to father, Radhabai and Lahanu resided together at village Reoki, Taluka Georai, District Beed. He ultimately stated on oath that Radhabai Satibhan Korade and Radhabai Lahanu Parekar are one and the same person. 14. In substance, the learned counsel for the petitioner Ms. Rebecca Gonsalvez submitted that the entry made in the school record reflected in the School Leaving Certificate was made prior to the commission of the offence or date of incident i.e. 22.1.1994. The identity of the petitioner in relation to the School Leaving Certificate and the school record is not in dispute. Further doubts raised by the prosecution are satisfied with the filing of the affidavit of the father of the petitioner. In view of Rule 10 12 of the Rules of 2007, the counsel submitted that the petitioner has placed on record of this Court evidence of her birth date which is conclusive proof in accordance with law for the purposes of grant of benefit conferred on the juveniles in conflict with law by the amended provisions of Section 7-A of the Act of 2000. In the view of the counsel, any Court is entitled to deal with the issue in respect of the claim of the juvenility. A finding in that respect is necessary to be recorded whether the person is a juvenile or not. As petitioner has satisfied the requirements enunciated in the law and established conclusively that on the date of commission of offence i.e. on 22.1.1994, the petitioner was a juvenile i.e. below age of 18 years of age, the sentence imposed on the petitioner is required to be quashed and set aside by this Court. 15. In support of the submissions, the learned counsel for the petitioner has placed reliance on reported judgment in 2008 CRI.L.J. 2115 (Saheb Sopan Kale Vs. The State of Maharashtra), delivered by Division Bench of Bombay High Court, 2008(110) Bom.L.R. 1645 (Imtiyaz Hussain Mumtiyaz Sheikh Vs. The State of Maharashtra through MIDC Police Station C.R. No. 214 of 1995), judgment delivered in Criminal Application No.568 of 2008 in Criminal Appeal No.1187/2002 by the Division Bench of Bombay High Court on 17.10.2008, A.I.R. 1994 SC 104 (Pradeep Kumar Vs. State of U.P. etc.), 2009 (6) SCALE 726, AIR 1964 SC 11 1625 (Mohd. Ikram Hussain Vs. State of U.P. and Ors.), 2004 SCALE 511) . 16. In the case of Babban Rai and Anr. Vs. State of Bihar (2008 Cri.L.J. 1038 : 2007 (11) SCALE 1), the Apex Court observed, “4. Learned counsel appearing on behalf of the State has not challenged the finding in relation to the age of appellant – Babban Rai; therefore, it is not necessary for us to go into the correctness of finding in relation to the age of this appellant. So far as Dharam Nath Rai is concerned, he has filed objection to the finding. Learned counsel pointed out that, in support of the age of this appellant, his father was examined as a witness during the course of inquiry who deposed that Dharam Nath Rai was born in the month of April, 1972. It appears that, pursuant to the order of the Trial Court, during the course of inquiry, a Medical Board was constituted which conducted ossification test and recorded that the age of Dharam Nath Rai on 22nd March, 2007 on which date the Report was prepared, was between 35 to 40 years. If the age of this appellant is taken to be 35 years, then his year of birth would be 1972; which is in conformity with evidence of father of the appellant, who was examined as a witness in this case and in case his year of birth, as deposed to by his father as 1972 is accepted, he would be definitely below sixteen years of age and 12 entitled to claim protection under Juvenile (Care and Protection of Children) Act, 2000. This being the position, we are of the view that the Trial Court was not justified in holding that appellant Dharam Nath Rai was not under sixteen years of age on the date of alleged occurrence i.e. 16th March, 1987. 17. In the case of Rajinder Chandra Vs. State of Chhattisgarh and Anr (AIR 2002 SC 748), the Apex Court in para 5 of the judgment observed, “5. It is true that the age of accused is just on the border of sixteen years nad on the date of the offence and his arrest he was less than 16 years by a few months only. In Arnit Das V. State of Bihar, MANU/SC/0376/2000 : 2000 Cri.L.J. 2971, this Court has, on a review of judicial opinion, held that while dealing with question of determination of the age of the accused for the purpose of finding out whether he is juvenile or not, a hyper-technical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the said evidence, the Court should lean in favour of holding the accused to be a juvenile in borderline cases. The law, so laid down by this Court, squarely applies to the facts of the present case.” 18. We have perused the judgments cited by the learned 13 counsel for the petitioner. 19, The learned A.P.P. Shri K.B. Choudhari submitted that under the orders passed by this Court, police made certain enquiry regarding the statements of parents of the petitioner, the school record was perused and produced before this Court and after conducting enquiry, it transpired that the petitioner failed to satisfy the requirement in law to establish her claim that she was juvenile in conflict with law at the time of the incident in question i.e. on 22.1.1994. Much reliance was placed on the statement of the parents of the petitioner and the school register extract which reflected that the younger brother of the petitioner Pandit and petitioner were admitted in the same year in the school in First Standard, which according to learned A.P.P., needs to be considered in the light of the statement of Satyabhan who in his statement recorded by police on 3.9.2008 stated that the petitioner was born after 5 years of the birth of elder son Dilip and thereafter youngest son Pandit was born after 5 years of the birth of the petitioner. The learned A.P.P. wanted to draw our attention to the fact that if the statement of father recorded by police was to be relied upon, then both the younger brother of the petitioner and the petitioner herself could not have been admitted to the school in the same year in the same standard i.e. First Standard. The sum and substance of the submissions of the learned A.P.P. is 14 that the case requires further probe, enquiry, by a forum which is entitled to record evidence. 20. We have considered the submissions advanced by learned counsel appearing for both the parties. Provisions of Rule 12 itself provides modes of establishment of age of a person to claim benefit of juvenility. One of the criteria is production of birth certificate or an entry of school record demonstrating date of birth of a convict. The petitioner accordingly produced such school leaving certificate which mentions date of birth of the petitioner as 14.8.1980. If the said date is considered to be the birth date of the petitioner, then on the date of the incident, i.e. 22.1.1994, the petitioner’s age would be 13 years 5 months and 8 days. 21. During the course of hearing of this petition, we thought it appropriate to get petitioner’s ossification test done by the competent Medical Officer and accordingly a report was called, which was produced before us. According to the ossification report, the petitioner’s age as on 28.8.2009 is stated to be about 25 years and below 35 years. We find substance in the submission of learned counsel for the petitioner that even if we consider midline age of the petitioner to be 30 as on 28.8.2009, still the petitioner’s age on the date of commission of 15 offence would be above 14 years 5 months, but below 18 years. 22. We have perused the statement recorded by police and the extract of school record. In the light of the view taken by the Apex Court and this Court, in the given fact situation of this case, we do not find that the issue is required to be dealt with by the trial Court or any other forum for making further enquiry in respect of the juvenility of the petitioner. In the light of the provisions of Section 6(2) of the Act of 2000, the powers conferred on the Board under the Act could also be exercised by the High Court and the Court of Sessions. Considering the provisions of Section 7-A of the Act, it is made clear that whenever claim of juvenility is raised before any Court, the Court shall make an enquiry, by taking such evidence as may be necessary (but not by an affidavit) to determine the date of birth. The learned counsel for the petitioner, therefore, rightly submitted that this Court is empowered to exercise the jurisdiction in view of the provisions of the Act and the Rules. In the given facts and circumstances of this case, we are, therefore, in agreement with the submissions advanced by the learned counsel for the petitioner that in the facts of this case, this Court could deal with the issue and reach out to a finding regarding the juvenility of the petitioner. 16 23. We have even perused the Maharashtra Juvenile Justice (Care and Protection of Children) Rules, 2002. Rule 6(5) of the said Rules refers to the procedure to be followed by the Juvenile Board in ascertaining the age of a person brought before it and one of the mode is a birth certificate issued by a Corporation or a Municipal authority, birth certificate from the school first attended, matriculation or equivalent certificate if available. Rule 6(5) reads as under : (5) In every case concerning a juvenile, the Board shall either obtain -- (i) a birth certificate given by a Corporation or a Municipal Authority; or (ii) a date of birth certificate from the school first attended; or (iii)matriculation or equivalent certificates, if available, and (iv)in the absence of (i) to (iii)above, the medical opinion by a duly constituted Medical Board, subject to the margin of one year, in deserving cases for the reasons to be recorded by such Medical Board. 24. In the present case, the petitioner submitted a school leaving certificate from the school where she first attended. In the submissions of the learned counsel, the entry of birth recorded in the school record on 15.7.1987 was much prior to the date of 17 commission of offence i.e. on 22.1.1994. Therefore, no doubt could be raised on the bonafides of the authority which recorded the entry nor any ulterior motives could be attributed to the petitioner for claiming benefits of Section 7-A of the Act at this stage. 25. In view of the facts of the case and the material placed before this Court, we are convinced that the petitioner is juvenile in conflict with law and was a juvenile in view of the provisions of Section 7-A read with 2(L) of the Act of 2000 on the date of commission of offence i.e. 22.1.1994. The petition, therefore, is required to be allowed. 26. We hold that the petitioner is “juvenile in conflict with law” on the date of commission of offence i.e. on 22.1.1994. We confirm the conviction imposed upon the petitioner by the trial Court and confirmed by the High Court in the appeal. We quash and set aside the sentence of life imprisonment imposed by the Additional Sessions Judge, Beed in Sessions Case No.42/1994 dated 23.8.1994. The petitioner shall be set at liberty forthwith in case the petitioner’s custody is not required in any other offence. Rule is made absolute in the above terms. [SHRIHARI P. DAVARE, J.] [ NARESH H. PATIL, J.]