-[1]- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.272 OF 2008 Shri.Harishankar Pandey. ..Petitioner. Versus The State of Maharashtra and 3 Ors. ..Respondents. .... Mr.Sachin Thorat, Adv. h/f. Mr.V.M. Thorat, Adv. for the Petitioner. Mrs.A.S.Pai, APP, for the State. .... CORAM : S.B.MHASE AND CORAM : S.B.MHASE AND CORAM : S.B.MHASE AND SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. DATED : 5th May, 2008. DATED : 5th May, 2008. DATED : 5th May, 2008. [IN CHAMBER, 2:45 P.M.] [IN CHAMBER, 2:45 P.M.] [IN CHAMBER, 2:45 P.M.] P.C.[PER SMT.V.K.TAHILRAMANI,J.]:- P.C.[PER SMT.V.K.TAHILRAMANI,J.]:- P.C.[PER SMT.V.K.TAHILRAMANI,J.]:- 1. Heard the learned Advocate for the petitioner and the learned APP for the State. 2. By this Writ Petition, the petitioner through his father has challenged the order dated 3rd November, 2007 passed by the learned Additional Sessions Judge, Thane. The case of the petitioner is that his son Ashish was a minor when the provisions of the Maharashtra Control of Organized Crime Act (for brevity hereinafter referred to as "MCOC Act") came to be applied to him. The case of the -[2]- petitioner is that Ashish was born on 3.5.1988. The provisions of the MCOC Act came to be applied on 21.4.2005. At that time, Ashish had not even completed 17 years of age. Hence, it is prayed that as Ashish was a minor at that time, he be released forthwith. Based on the fact that Ashish was a minor other reliefs have been prayed by the petitioner. 3. The petitioner had preferred an application before the learned Sessions Judge stating that Ashish was a juvenile at the time of the offence. In support of his application, he adduced oral as well as documentary evidence. The then learned IIIrd Additional District Judge, Thane rejected the said application on 9.1.2007. Aggrieved by the said decision, the petitioner preferred criminal Writ Petition No. 258 of 2007. The said Writ Petition was disposed of on 8.3.2007. By order dated 8.3.2007 passed by this Court in the said Writ Petition, the order dated 9.1.2007 was set aside and the matter was remanded to the Sessions Court with a direction to consider the application afresh after examining Dr.Chapalgaonkar and any other witness, the petitioner may want to examine. As stated earlier the said application came to be rejected, hence, the -[3]- present Writ Petition. 4. The petitioner in order to establish the claim in question that Ashish is a juvenile within the meaning of The Juvenile Justice (Care and Protection of Children) Act, 2000 has examined in all six witnesses. They are P.W.1 Shri.Vikramajeet Durgaprasad Pandey (Exh.50) who is Headmaster of RTP High School, Devadi, Dombivali. PW 2 Shri.Parbhans Giri (Exh.54) who is Headmaster of Mohili Upper High School, Sakinaka, Mumbai, PW 3 Dr.Pramod Murlidhar Chapalgaonkar (Exh.59), PW 4 Shri.Harinarayan Laitaprasad Tiwari (Exh.61) who is Principal of Hindi Junior College, PW 5 Shri.Janardhan Shankar Yadav. Headmaster of Paspoli Hindi High School (Exh.65) and Applicant himself at Exh.89. On the other hand, prosecution has examined retired ACP Shri.Kashinath Sopan Kachare vide Exh.73. 5. The petitioner has averred that his marriage was solemnized on 1.5.1982. However, as his wife Asha was minor at relevant time, she came to his residence for cohabitation after Gauna ceremony on 11.5.1987. Invitation cards to Gauna ceremony got printed by his father in law, are produced. Petitioner has -[4]- categorically averred that Ashish is his eldest son and Ashish was born on 3rd May, 1988 at Saki Naka, Mumbai. He stated the delivery of his wife had taken place at his residence in Mumbai, hence, he is unable to produce any certificate from any hospital nor he registered the birth of his son Ashish with concerned municipal authorities. He has relied on horoscope allegedly prepared by one Pandit Ramshankar Tiwari. According to the petitioner, Pandit Tiwari is no more and the horoscope was got prepared by his father at relevant time. 6. Petitioner has stated that he had admitted his son Ashish in Municipal Hindi School, Mohili, Sakinaka Mumbai, in 1st Standard in 1993 and at relevant time, in his application, he had mentioned birth date of Ashish as 3rd May, 1988. 7. During his cross-examination, the prosecution has brought on record that the petitioner is educated upto 3rd standard and used to write application with the assistance of others and he himself finds it difficult to read. He had averred that he only knows the month of his own birth and he is unable to tell exact date of birth of his daughter Gudiya. In such -[5]- case, it seems difficult to believe that he could give exact date of birth of Ashish. 8. Prosecution has further elicited from him that prior to registration of the case under the provisions of Maharashtra Control of Organised Crime Act, 1999 in all six criminal cases were registered against Ashish and it has been further brought on record that in all the said matters, the proceedings were not before the Court pertaining to juvenile in conflict with law. He also admitted that in all those matters he had moved applications for bail and never raised the contention in the said applications before the concerned Courts that his son Ashish was minor at the relevant time. The petitioner has admitted that there are in all 17 criminal cases registered against his son Ashish. He however, denied that in all those matters, the age of Ashish is mentioned as 20 years. He further admitted that all the said criminal cases against him i.e. against Ashish are of the year 2004. He however, denied any knowledge regarding the exact nature of the said criminal matters and further averred that he does not know that out of 17 cases, 13 cases are pertaining to theft of motorcycles and four cases are pertaining to -[6]- snatching of Mangulsutra and chain. He denied that he mentioned false date of birth of Ashish and only to exonerate Ashish from the case under Maharashtra Control of Organised Crime Act, 1999, he produced false documents and that he is deposing falsely. 9. Thereafter a number of school Headmasters were examined as witnesses by the petitioner. They have been examined on the point that while admitting Ashish in their respective school, the date of birth of Ashish is mentioned in the record as 3.5.1988. PW 1 Vikramjeet Pandey who is the Headmaster of RTP High School Davdi, Dombivali has deposed that Ashish was a student of the said school during the period from 20.6.1997 and 24.6.2002. He was admitted in 5th standard on 20.6.1997. He has stated that parents had submitted school leaving certificate at relevant time and the entries were made in the register on the basis of said school leaving certificate. During the cross-examination this witness has admitted that most of the students are from Uttar Pradesh and Bihar and as far as Ashish is concerned regarding the place of birth, there is eraser mark and later on place of birth is shown as Bambai (Bombay). It is pertinent to note that there is no eraser mark in respect of -[7]- place of birth in the register in respect of any other student except Ashish. This witness has admitted that he has not verified the entries mentioned in the earlier school leaving certificate which had been produced. It is also pertinent to note that it is nowhere mentioned that the said register produced by him pertains to the said school. This witness has deposed only on the basis of record and he has stated that he is unable to say whether or not the date of birth of Ashish was 5 years prior to 3.5.88. 10. Thereafter PW 2 Shri.Giri Headmaster of Mohili Upper High School Sakinaka has been examined. He has stated that school maintained printed form and the parents have to submit the said application in the printed form accordingly. According to him, Ashish was admitted in the school in 1st Standard in July, 1993. Regarding the place and date of birth, Shri.Giri has averred that it is mentioned as 3rd May, 1988 as per the school register and Ashish was admitted in the said school on 12.7.1992. One finds discrepancy regarding the date of admission of Ashish mentioned by Shri.Giri. Shri.Giri has further stated that Ashish was their student till 17.8.1994 and -[8]- thereafter school leaving certificate was issued. However, Shri.Giri has stated that Ashish was again admitted in their school in 5th standard on 15.7.1996 and again on 30.6.1997 Ashish left the school. Thereupon, again school leaving certificate was issued. It is pertinent to note that witness Shri.Pandey has stated that Ashish was student of their school from 20.6.1997 to 24.6.2002. However, Shri.Giri also claimed that Ashish was studying in their school on 20.6.1997. 11. Moreover, during his cross examination Shri.Giri denied that a person is required to produce birth certificate while seeking admission in Municipal school. He admitted that at the time of seeking admission of Ashish, the petitioner, Harishankar Pande had not furnished any documentary proof regarding his date of birth. He also admitted that the date of birth was mentioned as stated by Harishankar Pande. As regards General Register, he admitted that it is nowhere mentioned that the said general register is pertaining to their school. Thus, it is seen that entry regarding date of birth was made without any documentary proof. -[9]- 12. The next witness PW 4 Shri.Harinarayan Tiwari principal of Hindi Junior College has also averred that as per the entry at Sr.No.10602 in relevant General Register, the date of birth of Ashish is 3.5.88 and Ashish was admitted in 9th Standard on 3.7.2002. He has averred that prior to that, Ashish was student of RTP High School, Davadi, Dombivali and to support his version, he placed reliance on xerox true copy of relevant entry. 13. During his cross examination, Shri.Tiwari admitted that the date of birth of Ashish Harishankar Pande is mentioned in accordance with the date mentioned in earlier school leaving certificate and further admitted that he did not obtain nor did he demand any other documentary proof from the petitioner Harishankar Pande regarding the date of birth of Ashish. 14. The last witness on this point is PW 5 Shri.Janardhan Shankar Yadav who is Headmaster, Paspoli Hindi High School. According to him, Ashish was admitted in their school in 2nd Standard on 18.8.94 and entry to that effect in the relevant register is at Sr.No.2462. He further goes on to -[10]- state that as per the said entry the place of birth of Ashish is Mumbai and date of birth is 3.5.88. It has come in his evidence that previously Ashish was taking education at Municipal School, Sakinaka, Mohili and Ashish left the school on 1.8.1995. He submitted that in respect of Ashish, son of Harishankar Pande, the application was submitted by his wife Urmila Pande at the time of admission of Ashish. So also the date of birth was mentioned by said Urmila Pande and it was signed by Urmila Pande. Here it may not be out of place to mention that this witness later on averred that said Urmila Pande is not mother of Ashish but she is Aunt of Ashish. 15. During his cross examination, Shri.Janardhan Yadhav admitted that in the said certificate Exh.P-68 in the column pertaining to complete name and address of mother, father or guardian, it is only mentioned "Harishankar Ramsamuj Pande, Karunnagar, Pipeline in front of Tunganagar". He admitted that it is nowhere mentioned as to where and in which particular town, State, said Harishankar Pande resides. He also admitted that address of said Urmila Pande is nowhere mentioned in the said certificate nor there is any reference of her relation with Ashish in the said -[11]- certificate. He admitted that in the register brought by him, it is nowhere mentioned that it is pertaining to Higher Primary Hindi School Paspoli. He admitted that the place of birth and date of birth mentioned in entry No.2463 vide Exh.P-66 in the register is on the basis of earlier school leaving certificate and also on the basis of school admission form Exh.P-68 which was filled in by one Urmila Pande. 16. The petitioner had also examined Dr.Chapalgaonkar. Dr.Chapalgaonkar has deposed that ossification test and dental examination of Ashish was carried out. On the basis of those reports, he issued certificate showing approximate age of Ashish to be 17 to 19 years. Dr.Chapalgaonkar agreed with the proposition laid down in Modi’s Jurisprudence that too much reliance cannot be placed on such examination. He further averred that except the said report of expert, he did not refer to any other reports while issuing certificate Exh.P-60. He however, denied the suggestions that on the basis of the said certificate, age of Ashish may be below 17 and averred that as per the relevant test conducted, according to him, Ashish had completed 17 years. He admitted that as per the certificate, exact age is -[12]- now shown. During cross-examination by prosecution, he averred that there may not be difference while conducting ossification test even in respect of persons suffering from Mal-nutrition. Thus, evidence of this witness does not help the petitioner. 17. On the other hand, the prosecution has examined retired Assistant Commissioner of Police Shri.Kashinath Sopan Kachare at Exh.73. He has played major role in connection with the crime in question. He has averred that he submitted charge sheet in connection with the said offence under the provisions of Maharashtra Control of Organised Crime Act, 1999 after completion of the investigation. He categorically averred that Ashish who is arrayed as an accused never agitated after his apprehension in the matter that he was juvenile and prior to applying the provisions of Maharashtra Control of Organised Crime Act 1999 against him, he had collected necessary evidence regarding crimes registered against him. ACP Kachare has stated that after obtaining necessary sanction from the competent authority, provisions of MCOC Act were applied against the accused Ashish Pandey. ACP Kachare also averred that while moving bail applications, Ashish -[13]- had mentioned his age as 20 at the relevant time. ACP Kachare has relied upon certified copies of some of the bail applications moved by Ashish in the said matters as well as plea recorded by the concerned Court while framing charge against him. True copies of pleas of accused recorded by the Court of J.M.F.C. Kalyan in connection with RCC No. 43/05, 60/05, 62/05, 10/05 and 42/04 are at Exhs. P-74 to P-78 respectively. Therein Ashish has stated his age as 20 years. The application for bail moved by Ashish in CC No.43/05, his personal bond and certified copy of Vakalatnama are collectively at Exh.P-79. The bail application, certified copy of Vakalatnama in respect of RCC No.33/05 are collectively at Exh.P-80. His P.R. Bond and Vakalatnama in RCC No.60 of 2005 are collectively at Exh.P-81 and certified copy of application moved by Ashish for his release on Personal Bond in CC No.56 of 2005 and certified copy of Vakalatnama are collectively at Exh.P-82. In all these documents, Ashish is shown as major. 18. ACP Kachare has stated that during investigation, he had collected necessary documents regarding the age of Ashish from schools in which he was taking education and the said documents have been -[14]- filed along with charge sheet later on. He averred that petitioner Harishankar Pande during investigation had approached him and had submitted relevant school documents regarding the age of accused Ashish and he had referred accused Ashish to Dombivali Municpality hospital, Shastrinagar to ascertain his age and the concerned medical officer had opined that he was between 18 to 20 years. Certified copy of the said certificate is at Exh.P-85. 19. We have carefully considered the submissions of both sides. The contention of the petitioner is that date of birth of Ashish is 3.5.1988. The petitioner has relied upon horoscope to prove date of birth of Ashish but in the absence of cogent and convincing proof, it cannot be of any help to establish age of Ashish. Same is the case of invitation card of Gauna Ceremony which was pressed into service as it has not been proved that it is pertaining to petitioner’s wife. The concerned person i.e. father in law of petitioner should have come forward to fortify the claim of the petitioner as the card has been purportedly got printed by him. -[15]- 20. It is pertinent to note that Ashish or the petitioner never agitated that Ashish was juvenile at any point of time till the provisions of MCOC Act came to be applied to him. It is only thereafter that for the first time this claim was made by the petitioner. 21. From the evidence led, it is seen that Ashish was admitted in the 1st Standard in Mohili School Sakinaka in July, 1993. Shri.Giri, the Headmaster of the said school has admitted that at the time of seeking admission of Ashish, the petitioner Harishankar Pande had not furnished any documentary proof regarding his date of birth. He also admitted that the date of birth was mentioned as stated by Harishankar Pande. Thus, it is seen that entry regarding date of birth was made without any documentary proof. The genesis of the entry regarding date of birth of Ashish is not based on any document. Subsequent entry is on the basis of form filled by one Urmila Pande. The said lady has not come forward to fortify the claim of the petitioner regarding the age factor. The relation of the said lady is also not brought on record to show that she had any authority to submit such application. So -[16]- also it is not brought on record on what basis she gave the date of birth as 3.5.1988. Even the address of Harishankar Pande in the said application form is admittedly not complete. The town or city, State is not mentioned. Thus, no convincing evidence is brought on record regarding the date of birth and the cross-examination of the witnesses makes it clear that the documents produced by them cannot be sufficient to establish that age of Ashish was below 18 at the relevant time. So far as other entries are concerned, admittedly they are on the basis of entry which is based on the age given by said Urmila Pande. . After having taken stock of rival contentions and evidence on record, it would be seen that substratum of the claim of the petitioner that Ashish is a juvenile emanates from the age given by him with no documentary proof to back it and thereafter on the basis of age given by one Urmila Pande. The said Urmila Pande has not been examined nor as has already been indicated, her relation is made clear with Ashish. Moreover, nothing has been brought on record as to on what basis the age or date of birth 3.5.1988 came to be mentioned by her at the initial stage in the application form while admitting Ashish in the said school. It is needless to say that all other -[17]- entries are based on the said application form and entries therein by said Urmila Pande. It was necessary for the petitioner to examine the said lady as a witness to substantiate the claim in question. The Headmaster concerned initially stated that said Urmila Pande is the mother of Ashish and later on recanting the said version averred that she is aunt but admittedly there is nothing on record to fortify that she is any way related to Ashish and that she had any authority or knowledge to give such details. Moreover, at that stage there was nothing authentic on record to substantiate the date of birth mentioned by said lady in the said form. 22. The learned APP further submitted that the general registers brought by the school masters do not bear the seal and name of the concerned schools. Witnesses have stated that registers had been supplied by the Municipal Corporation and hence, they do not bear name of the school. But there is no endorsement to that effect nor has any one been examined from the Municipal Corporation to show that registers were given to the schools and hence, they did not bear the name of the school. Mrs.Pai further submitted that the version of PW 1 Pandey in support of Harishankar Pande indicates that he is interested -[18]- witness and so far as the place of birth is concerned it has been specifically brought on record that except in respect of Ashish in the entire register in column No.5 in respect of other students, there is no correction or erasure in respect of place of birth. In our view this admission certainly goes to the root of the matter. We shall now advert to this aspect. 23. As we have already observed above that in the school register as regards the place of birth, there is eraser only in respect of Ashish and there is no eraser in respect of any other student. The earlier place of birth has been replaced with Bambai i.e. (Bombay). This erasure assumes great significance in view of the following aspects: I) As far as admission in the 1st Standard in Mohili Upper High School, Sakinaka is concerned, no documentary proof regarding the date of birth of Ashish was furnished by the petitioner or any one. II) Ashish was admitted in the school at Sakinaka Powai where the above mentioned Urmila Pande signed and filled in the form and gave date of birth of Ashish as 3.5.1988. The said Urmila has not been -[19]- examined by the petitioner before the Sessions Court. This very entry forms the basis of the subsequent entries regarding date of birth in the registers of various schools. In view of the discussions above, we find that there is no reliable material to show that the date of birth given as 3.5.88 of Ashish is genuine. On the other hand, it is pertinent to note that the petitioner who is the father of Ashish while seeking admission for Ashish in Hindi High School, Joshibaug Kalyan, Dist.Thane, submitted admission form wherein he himself has mentioned the place of birth as village Dhanej Pandey, Dist.Ajamgarh (U.P.) and he has signed the said form. However, the petitioner has deposed before the Court that Ashish was born at Sakinaka, Mumbai, however, his contention is that Ashish was born at home in Mumbai, hence, is unable to produce any certificate from any hospital. It is pertinent to note that the petitioner has admitted that he has not registered the birth of his son with the municipal authorities. In respect of the record of the school at Joshibaug Kalyan, this Court had directed the Investigating Agency to verify the said entries and the date of birth of Ashish. Accordingly, Shri.V.K.Kambli, PSI of Manpada Police Station along with one police constable visited -[20]- Ajamgarh (UP). After due enquiry by the said Officer at Grampanchayat office Ajamgarh the certified copy of family register was obtained wherein the date of birth of Ashish Pande i.e. son of the petitioner is revealed as 1.4.1986. The certified copy of the family register has been annexed to the affidavit of the Assistant Commissioner of Police Shri.Takale. There is no counter affidavit filed and the averments made in the affidavit are not controverted by the petitioner. Not only this, PSI Kamble also made enquiries with the Tahsildar, Gram Vikas Officer Balram Chatriram, Sarpanch Shyam Dulari Ram Ashray and Shri. Pradeepkumar Shivkumar Pandey who is the neighbour of the petitioner in Ajamgarh. The statements of Balram Chatriram, Shyam Dulari Ram Ashray and Pradeepkumar Shivkumar Pandey were recorded. All three of them have stated that the date of birth of Ashish is 1.4.1986 and his place of birth is Dhanej Pandey, Ajmagarh (UP). In addition, Balram Chatriram has categorically stated that Ashish was born on 1.4.1986 and the place