AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.753 OF 2009 IN CRIMINAL APPEAL NO.255 OF 2009 Mohd. Samir Juber Shaikh ... Applicant Vs. The State of Maharashtra. ... Respondents Ms. Anjali Patil for the applicant. Ms. P.H. Kantharia, A.P.P. for the State. CORAM: MRS. RANJANA DESAI & MRS. V.K. TAHILRAMANI, JJ. DATE ON WHICH THE ORDER IS RESERVED : 19TH MARCH, 2010. DATE ON WHICH THE ORDER IS PRONOUNCED: 23RD MARCH, 2010. P.C. :- (Smt. Ranjana Desai, J.) 1. The applicant is accused 1 in Sessions Case No.680 of 2006. He was charged along with three others for offences punishable under Sections 363, 366, 354, 376, 377, 302 and AJN 2 201 read with Section 34 of the Indian Penal Code (for short, “the IPC”). 2. According to the prosecution, the applicant along with other accused, kidnapped deceased – Minakshi aged about 3½ years from the lawful custody of her parents; gang- raped her and committed her murder between 7/4/2006 and 9/4/2006. 3. By judgment and order dated 24/10/2008, Additional Sessions Judge for Greater Mumbai convicted the applicant, inter alia, for offence punishable under Section 302 of the IPC and sentenced him to suffer RI for life. 4. The applicant has sent this application through jail claiming that when the incident took place, he was a juvenile and, therefore, he could not have been tried by the Sessions Court and sentenced for life imprisonment. 5. On 16/7/2009, Division Bench of this court to which AJN 3 one of us (Smt. Ranjana Desai, J.) was a party, directed that necessary inquiry be conducted as to whether the applicant was a juvenile within the meaning of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short, “the said Act”) and a report be submitted to this court. Accordingly, an inquiry has been conducted and Report dated 24/9/2009 has been submitted by the Metropolitan Magistrate, Juvenile Court, Dongri, Mumbai. The report states that when the offence was committed, the applicant was a major. 6. We have heard Ms. Patil, learned advocate appearing for the applicant. She submitted that the age certificate issued by the Superintendent of Bhausaheb Hire Government Medical College, Dhule states that on 23/3/2009, the applicant was 19-20 years of age. Therefore, in 2006, when the offence was committed, the applicant was between 15-16 years of age. She submitted that, therefore, learned Magistrate should have taken this age certificate into consideration and stated that the AJN 4 applicant was a juvenile when the offence was committed. Counsel submitted that undue weightage was given to the evidence of father and the Head Master of the school where the applicant was admitted. She submitted that the said evidence do not inspire confidence and the medical evidence should have been preferred as against oral evidence. 7. It is not possible for us to accept this submission. Section 7A of the said Act states that whenever a claim of juvenility is raised before any court, the court shall make an inquiry, take such evidence as may be necessary so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be. The claim of juvenility may be raised before any court at any time. Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short, “the said Rules”) lays down the procedure to be followed in determination of age. Sub-rule (3) of Rule 12 of the said Rules reads as under : AJN 5 “12. Procedure to be followed in determination of Age.- (1) xxx xxx xxx (2) xxx xxx xxx (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; (b) and only in the absence of either (i), (ii) or (iii) or clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by AJN 6 them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.” 8. It is only if the documents provided in Rule 12(3)(a)(i), (ii) and (iii) of the said Rules are not available, the medical opinion has to be sought from the duly constituted Medical Board which will declare the age of the juvenile or child. In this case, Mrs. Raziya Hasan Khan, the Deputy Head Teacher of Sanjay Nagar Municipal Urdu School No.2, has produced a Register of Admission maintained by the school where the applicant was admitted. She stated that in the said register, the admission number of the applicant is shown as 2375 dated 5/7/1994 and the birth date is shown as 29/1/1988. As per the said register, the applicant took AJN 7 education in the school and passed 3rd standard and thereafter the applicant used to remain absent. Mrs. Raziya has produced a certified zerox copy of page No.042 of original Register No.2 in support of her evidence. Mrs. Raziya has further stated that the applicant took readmission in the school on 16/7/2002. He again used to remain absent from the school and, therefore, the applicant was dismissed from the school on 15/3/2003. Mrs. Raziya has further stated that the applicant was admitted in the school by his mother Parveen and her thumb impression is there in the relevant entry. Mrs. Raziya has filed her affidavit to the above effect. 9. The applicant's father examined himself. According to him, the applicant was born on 11/11/1989. He admitted that he did not have any documentary evidence about the birth date of the applicant. He stated that the applicant was admitted in the school by his mother-in-law – Bibbi. Mrs. Raziya has stated that no woman by name Bibbi had been to the school for seeking admission for the applicant. The AJN 8 evidence of the applicant's father does not inspire confidence. It is not supported by any documentary evidence. His case is that his mother-in-law – Bibbi went to admit the applicant cannot be accepted because as per Mrs. Raziya, it is the applicant's mother Parveen who took him to the school for admission and Parveen's thumb impression is found in the certified xerox copy of the admission form produced by Mrs. Raziya. 10. So far as the medical evidence is concerned, as per sub-rule (3) of Rule 12, it is only in the absence of the documentary evidence that the medical opinion could be taken into consideration. Moreover, documentary evidence produced by Mrs. Raziya appears to be credible. When there is documentary evidence indicating that the applicant was not a juvenile when the offence was committed, it is not possible to rely on the age certificate issued by the Superintendent of Bhausaheb Hire Government Medical College, Dhule and come to a conclusion that the applicant was a juvenile at the relevant time. In our opinion, learned AJN 9 Magistrate's Report dated 24/9/2009 cannot be faulted. We accept it. In the circumstances, the application is dismissed. 11. This order be communicated to the applicant in jail. [MRS. RANJANA DESAI, J.] [MRS. V.K. TAHILRAMANI, J.]