1 apeal-1265-02.sxw dgm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION APPEAL NO. 1265 OF 2002 Jitan Moti Rathod .... Appellant vs State of Maharashtra .... Respondent Mr. Virendra Pethe i/by Mr. B. D. Joshi for the Appellant. Mrs. P. P. Shinde, APP for the respondent/State. CORAM: B. H. MARLAPALLE & ANOOP V. MOHTA, JJ. DATE : 10th August, 2010 P.C.: The appellant was tried and convicted in Sessions Case No.43/2000 for the offence punishable under Section 302 of IPC, as per the order passed by the learned IInd Additional Sessions Judge at Kalyan and the said order came to be challenged in this Appeal which was admitted on 05.12.2002. 2 Criminal Application No.1334/2009 came to be filed by the appellant claiming to be a juvenile on the date of the offence i.e. 29.12.1999. He claims that he was admitted in the school on 15.06.1992 and left it on 20.03.1995. He was issued a school leaving certificate in which his date of birth was shown as 10.07.1985 and thus, on the date of the offence he was about 14 years of age. We, therefore, allowed Criminal Application No.1334/2009 by our order dated 09.12.2009 and directed the learned IInd Additional Sessions Judge at Kalyan to 2 apeal-1265-02.sxw record the evidence on the claim of the applicant regarding his date of birth i.e. 10.07.1985. The applicant was directed to adduce evidence in support of his plea and the trial Court was directed to submit its report by 31.12.2009. The trial Court submitted its findings i.e. Order dated 03.04.2010 passed below Exh. “1” in Misc. Criminal Application No.58/2009. The trial Court held that the applicant had not attained the age of 16 years on the date of the commission of the offence i.e. On 29.12.1999 and, thus, he was a juvenile. We took note of the said finding in our order dated 09.04.2010 and the fact that the said finding was based on the radiological report submitted, but the radiologist was not examined before the Court and hence we had directed the Superintendent of Harsool Central Prison at Aurangabad to present the appellant before the Medical Board attached to the Government Medical College at Aurangabad so as to determine his age as at present and forward the report to this Court. The Medical Board submitted its report dated 28.04.2010 and issued a certificate stating that on the date of the examination, the applicant would be between the age 20 to 30 years. We noted, in our order dated 04.05.2010 that mere medical certificate regarding the age was not sufficient and it would be necessary to call for the report on the basis of which the same was issued. The Superintendent of Harsool Central Prison at Aurangabad was directed to forward the medical report to this Court and, accordingly, the same has been received as per the forwarding letter dated 20.05.2010. The Medical Board has stated that on 28.04.2010, the age of the applicant was between 20 to 30 years. 3 The learned counsel for the appellant has relied upon the decisions in the 3 apeal-1265-02.sxw case of Babban Rai v. State of Bihar, 2008 AIR SCW 511 and Ram Suresh Singh v. Prabhat Singh, AIR 2009 SWC 2805. In the case of Babban Rai, one of the accused had claimed to be born in April 1972 and pursuant to the order of the trial Court, a Medical Board was constituted which conducted ossification test and recorded the age of the accused as between 35 to 40 years as on 22.03.2007. A three Judge Bench of the Supreme Court held that if the age of the appellant is taken to be 35 years, then his year of birth would be 1974, which was in conformity with the evidence of the father of the appellant, who was examined as witness and in case his year of birth as deposed by his father as 1972 would be accepted, he would be definitely below the age of 16 years and, thus, entitled for the protection under the Juvenile Justice (Care and Protection of Children) Act, 2000, (for short, “the Juvenile Justice Act). The Supreme Court accepted the finding of the trial Court and granted the protection to the appellant. 4 In the instant case, when the learned Additional Sessions Judge conducted the inquiry regarding the date of birth of the appellant, Mrs. Aparna Sharma, the head mistress of Sushila Sinha Hindi Prathmik Pathshala, Ulhasnagar and Mr. Rakesh Sinha, a teacher in the said school were examined and the school leaving certificate at Exh. “13”, extract of General School Admission Register at Exh. “14, the affidavit of Sub Registrar Dr. Liladhar Mhaske at Exh. “15” and the medical report at Exh. “20” were taken into consideration. The trial Court noted that the source of furnishing the appellant’s date of birth as 10.07.1985 while he was admitted in the school was not traceable and, therefore, it preferred to rely upon the medical report at Exh. “20”. As a matter of abundant precaution, we had 4 apeal-1265-02.sxw directed the Medical Board to conduct a fresh medical examination of the appellant and the report dated 28.04.2010, states that as on 28.04.2010 he would bet between 20 to 30 years of age. If he is treated to be 20 years of age as on 29.12.1999, he would be about 9 years of age and if he is treated to be 30 years of age, he would be around 19 years of age on the date of the incident. The average of 20 and 30 years would be 25 years and with that assumption as has been drawn by the Supreme Court in Babban Rai (supra), certainly the appellant would be less than 18 years of age on the date of the incident and, thus, entitled for the benefit of Section 7A of the Juvenile Justice Act as he would be a juvenile in conflict with law as defined in Section 2 (l) of the said Act. 5 Even more recently in the case of Dharambir v. State (NCT of Delhi) & Anr., JT 2010 (6) SC 273, the Supreme Court has referred to all its earlier decisions so as to extend the benefit of Section 7A of the Juvenile Justice Act and the same decision is applicable in the instant case as well. 6 Hence, we hold that as on 29.12.1999 the appellant was a juvenile and entitled to claim protection of Section 7A of the Juvenile Justice Act. He has already undergone more than 10 years of sentence and under the Juvenile Justice Act, the maximum sentence is of 3 years. Hence, the Appeal is partly allowed and we direct that the appellant be released forthwith, unless required to be detained in any other criminal case. (ANOOP V. MOHTA, J.) (B. H. MARLAPALLE, J.)