-1- MGN IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.568 OF 2008 IN CRIMINAL APPEAL NO.1187 OF 2002 Pintoo @ Santosh Vasant Holkar..)..APPELLANT Versus The State of Maharashtra )..RESPONDENT Ms. Rebecca Gonsalves, for the Applicant Mrs. V.R. Bhosale, APP for Respondent. CORAM: F.I. CORAM: F.I. CORAM: F.I. REBELLO REBELLO REBELLO & A.A.KUMBHAKONI, JJ. A.A.KUMBHAKONI, JJ. A.A.KUMBHAKONI, JJ. DATED: 17th October, 2008 DATED: 17th October, 2008 DATED: 17th October, 2008 P.C. P.C. P.C. . This is an application by the Applicant who has been convicted for an offence punishable under Section 302 and 323 of the I.P.C. The incident took place on 29th April, 1997. The Appeal preferred by the Appellant herein was disposed of by this Court on 28th December, 2006. AT the relevant time a delinquent was a person who was less than 16 years and below. -2- 2. Subsequent to that Section 7A has been introduced whereby a Juvenile in conflict with law is a person aged 18 years and below. The Appellant, therefore, moved an application before this Court claiming benefit of the aforesaid change in law. By order dated 3rd July, 2008 considering the judgment of this Court in Imtiyaz Hussain Mumtiyaz Sheikh vs. State of Maharashtra in Criminal Appeal No.750 of 2004 with Criminal Application No.420 of 2008 this Court directed the A.P.P. to verify the genuiness of the School Leaving Certificate produced by the Applicant herein. 3. The learned Counsel for the Applicant submits that the affidavit was filed on behalf of the State. We, however, find from our records that the said affidavit is not on record. Learned A.P.P. to place a copy on the record. 4. In the affidavit filed by Shankar Bhausaheb Kale, Assistant Police Inspector sets out that inquiry was made regarding the date of birth of the applicant. There is no registration of date of birth of the applicant in so far as the village records are concerned. In the school records the date of birth is shown as 1st June, 1979. There is no dispute about the genuiness of the said entry. -3- All that is said is that there are no material to show how and on what basis that entry was made. The entry in the school record is of 1st June, 1979. The incident is of 29th April, 1997. It is, therefore, not possible to say that the parents of the applicant would have in advance fabricated the record. The fact remains that in the school record the date of birth is shown as 1st June, 1979. 5. This Court further by its order of 10th September, 1998 had directed ossification test to be done. The learned Counsel has produced before us the opinion pursuant to the ossification test. That test was done on 23rd September, 2008. As per the certificated issued as on the date of the test the applicant would be about 21 years plus six months. Considering that the date of incident was 29th April, 1997 and the date of ossification test is 23rd September, 2008 the age of the appellant on the date of incident work out to be 11 years 5 months. Therefore, the applicant would be less than 18 years of age on the date of alleged offence. 4. In our opinion, therefore, considering the school leaving certificate as also the ossification test the applicant would be a Juvenile in conflict with law and consequently entitled to the benefit under Section 7A of the Act. -4- 5. The applicant has already undergone more than three years imprisonment. Considering the same if the applicant is not required in any other offence the Applicant to be released forthwith. Application disposed of accordingly. (A.A.KUMBHAKONI, J.) (A.A.KUMBHAKONI, J.) (A.A.KUMBHAKONI, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.)