1 cri.appln.784-10 mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.784 of 2010 Raju Laxman Sarane ..Applicant Vs. State of Maharashtra ..Respondent Ms. Rebecca Gonsalvez for the Applicant. Mr. J.P. Yagnia, APP for the respondent. CORAM: B. H. MARLAPALLE & ANOOP V. MOHTA, JJ. DATE : 13th August, 2010. P.C. 1. Heard Ms. Gonsalvez, the learned Counsel for the applicant and Mr. Yagnik, the learned A.P.P. for the State. In Sessions Case No.199 of 2004, four accused were put on trial for the offence punishable under Section 302 read with Section 34 of I.P.C. The present applicant was accused No.2 and other accused were his elder brothers. By his judgment and order dtaed 3rd February, 1995 the learned 5th Additional Sessions Judge at Solapur was pleased to acquit all the accused for the offence punishable under Section 302 read with Section 34 of the I.P.C. The State Government challenged 2 cri.appln.784-10 the aquittal order in Criminal Appeal No.279 of 1995 and a Division Bench of this Court by its judgment dated 6/7th April, 2005 allowed the appeal partly by convicting accused Nos. 1 and 2 for the offence punishable under Section 302 read with Section 34 of the I.P.C. and by confirming the order of acquittal passed against accused Nos. 3 and 4. Accused Nos. 1 and 2 came to be sentenced to suffer R.I. for life and consequently the applicant came to be arrested and is presently undergoing the sentence from 9th July, 2005 i.e. for the last more than 5 years. 2. The applicant claims that as on the date of the offence i.e. on 26th June, 1995 he was a juvenile and his age of 19 years was wrongly shown before the trial Court. Hence this application for a declaration that he was “a juvenile in conflict with law” as defined in Section 2(l) of the Juvenine Justice (Care and Protection of Children) Act, 2000 (for short “the Juvenine Justice Act”). In February, 2009 he had submitted an application to the Sessions Court at Solapur through the Yerwada Central Prison at Pune for the same relief in Sessions Case No.199 of 1994 claiming that as on 27th June, 1994 he was less than 18 years of age and the said application came to be registered as Criminal Misc. Application No.362 of 2009. The learned Ad hoc Additional Sessions Judge, Solapur decided the said application after allowing the applicant to adduce evidence both oral as 3 cri.appln.784-10 well as documentary, by his order dated 7th April, 2010 and held in favour of the applicant. However, as he was acquitted by the Sessions Court and convicted by the High Court in the above said Appeal the learned Ad hoc Additional Sessions Judge expressed his inability in proceeding with the matter and, therefore, he declined to pass any further order declaring the applicant to be “a juvenile in conflict with law” and directing his release. The application was, therefore, rejected. 3. The record and proceedings of Criminal Miscellaneous Application No.362 of 2009 has been received. One Shri Rajendra Dhondu Mashal, Health Supervisor was examined before the learned Ad hoc Additional Sessions Judge and the applicant also submitted a copy of the birth certificate issued by the Health Department of Panchayat Samiti, Akkalkot on 4th August, 2009 (Exhibit 18). In addition, the original Birth Registration Register was placed before the trial Court for the year 1977 and a photostat copy of the relevant extract i.e. for the month of November, 1977, from the said original register was placed on record at Exhibit 21. 4. Mr. Yagnik, the learned A.P.P. wanted to verify the photostat extract 4 cri.appln.784-10 of Exhibit 21 from the original Register and, therefore, the same has been produced before us on directions. In the Birth Registration Register of village Sulerjavalge at Serial No.49 the name of the applicant finds place. The date of birth of the applicant in the concerned column is 25th November, 1977 and his mother’s name is mentioned as Sonabai whereas his father’s name is shown as Laxman s/o.Siddappa Sarane. The Register further shows that his mother was of the age of 39 years and the applicant was her 8th child. 5. The Ad hoc Additional Sessions Judge on appreciation of evidence considered the document at Exhibit 17 and noted that the applicant was born on 25th November, 1977 and there was no reason to disbelieve the witness. He further observed as under:- “This certificate issued need not be disbelieved. He is shown to be a minor in the records of an authority who is a responsible person. The police have merely shown his age as 19 years, but has not explained from where and on what basis they have made this entry. Inquiries are made by the police from the accused or parents and usually whatever is stated, it is entered as the age. Usually the villagers do not know their exact date and time of their birth. Therefore, it is to 5 cri.appln.784-10 be held that the entry at that time made in the record should be considered to be true and correct. This Court holds that he was a minor i.e. below 18 years of age.” 6. However, for the reasons as noted in the earlier part of his order the learned Ad hoc Additional Sessions Judge, Solapur held that he was not competent to extend the benefit/protection of Section 7A of the Juvenile Justice Act to the applicant as the order of conviction was passed by this Court. The applicant was, therefore, granted liberty to approach us. 6. We have considered the arguments advanced by Mr. Yagnik, opposing the application, perused the original Birth Register maintained by village Sulerjevalge and record and proceedings in Criminal Miscellaneous Application No.362 of 2009. We are satisfied that the findings recorded by the learned Ad hoc Additional Sessions Judge, Solapur do not suffer from any error and it is rightly held that as on 26th June, 1990 he was less than 18 years of age and thus “a juvenile in conflict with law” as defined under Section 2(l) of the Juvenile Justice Act. Consequently he is entitled for the protection under Section 7A of the said Act. He has already undergone more than 5 years of sentence. Our view is 6 cri.appln.784-10 supported by a recent judgment of the Supreme Court in the case of Dharambir v. State (NCT of Delhi) & Anr., JT 2010 (6) SC 273. 8. In the premises this application succeeds and the same is hereby allowed. The applicant is directed to be released forthwith as he is “a juvenile in conflict with law” as defined under Section 2(l) of the Juvenile Justice Act, and has already suffered in excess of five years sentence, unless required to be detained in any other criminal case. (ANOOP V. MOHTA,J.) (B. H. MARLAPALLE, J.)