AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.966 OF 2008 IN CRIMINAL APPEAL NO.42 OF 2005 Navab Ansar Shaikh ... Applicant Vs. The State of Maharashtra ... Respondents Mr. P.S. Mahimkar for the applicant. Ms. V.R. Bhonsale, A.P.P. for the State. CORAM : SMT. RANJANA DESAI & R.Y. GANOO, JJ. DATE ON WHICH THE ORDER IS RESERVED : 9TH SEPTEMBER, 2008. DATE ON WHICH THE ORDER IS PRONOUNCED : 26TH SEPTEMBER, 2008. P.C.:- 1. This application is sent by the applicant Navab Ansar Shaikh, who is appellant 1 in Criminal Appeal No.42 of 2005. He is original accused 1 in Sessions Case No.261 of 2003, which was tried by AJN 2 the Court of Second Ad-hoc Additional Sessions Judge, Thane. The applicant was tried with three others for offences punishable under sections 302, 326, 342, 363, 365, 376, 506 read with section 34 of the Indian Penal Code (for short, “the IPC”) and under rules 3 (A) and 5 of the Passport Act (Entry into India) Rules, 1950. In short, the case of the prosecution is that the accused raped prosecutrix Beauty, killed her brother and abducted her father. 2. By judgment and order dated 27/10/2004, learned Second Ad-hoc Additional Sessions Judge convicted the applicant and other accused for the offence punishable under section 302 read with section 34 of the IPC. He sentenced each of them to suffer RI for life and to pay fine of Rs.1000/- in default, to suffer RI for 3 months. The accused were also found guilty of the offence punishable under section 326 read with section 34 of the IPC. Each of them was sentenced to suffer RI for five years and to pay a fine of Rs.500/- in default, to suffer RI for one month. The accused were also convicted for the offence punishable under section 342 read with section 34 of the IPC. Each of them was sentenced to AJN 3 suffer RI for six months and to pay a fine of Rs.500/- in default, to suffer RI for one month. The accused were also found guilty of the offence punishable under section 363 read with section 34 of the IPC. Each of them was sentenced to suffer RI for five years and to pay a fine of Rs.1000/- in default, to suffer RI for three months. The accused were also convicted for the offences punishable under section 365 read with section 34 of the IPC. Each of them was sentenced to suffer RI for five years and to pay a fine of Rs.500/- in default, to suffer RI for one month. The accused were also found guilty of the offence punishable under section 376 read with section 34 of the IPC. Each of them was sentenced to suffer RI for ten years and to pay fine of Rs.1000/- in default, to suffer RI for three months. The accused were also found guilty of the offence punishable under section 506 read with section 34 of the IPC. On that count, each of them was sentenced to suffer RI for six months and to pay a fine of Rs.500/- in default, to suffer RI for one month. The accused were also found guilty of the offence punishable under Rule 6(a) of the Passport (Entry into India) Rules 1950. On that count, each of them was sentenced to suffer RI for AJN 4 two months and to pay fine of Rs.100/- in default, to suffer RI for eight days. Substantive sentences were ordered to run concurrently. 3. Criminal Appeal No.42 of 2005 was admitted by this court on 25/1/2005. The present application is dated 18/2/2008. It is sent by the applicant through the Superintendent of Yerwada Central Prison, Pune, where he is lodged after conviction. Admittedly, the applicant is a citizen of Bangladesh and is staying illegally in India. That is why he is sentenced under rule 6(a) of the Passport (Entry into India) Rules, 1950. After he serves his sentence, he will have to be deported to Bangladesh. According to the applicant, he was born on 25/3/1986 and when the offence took place on 29/5/2003, he was about 17 years of age. It is his case that since he was a juvenile in conflict with law within the meaning of section 2(1) of the Juvenile Justice (Care and Protection) Act, 2000 (for short, “the said Act”), it was necessary to deal with his case in accordance with the procedure laid down under the said Act. In support of his claim that he was a juvenile in conflict with law when the incident in AJN 5 question took place, he has annexed to the application a document described as Nationality & Character Certificate. It is dated 9/12/2007. It is issued by Paroli Union Parishad, P.S. - Kalia, Dist. Narail, Bangladesh. Chairman of this Parishad one Shofi Uddin Mollah has certified that the applicant comes from a respectable family; that he bears a good moral character and that he has not taken part in any activity subversive to the state or discipline. Other document annexed to the application is a certificate dated 6/12/2007 allegedly issued by the Head Master, Fazel Ahmed Secondary School, P.S. - Kalia, Dist. Narail, Bangladesh. The certificate states that the applicant's birth date is 25/3/1986. It further states that the applicant does not “participate in unlawful or subversive activities of the country” and that “he is a man of morality”. It is not understood how suddenly in December, 2007, such certificates of good character are issued to the applicant. The third document is styled as Birth Certificate. It is purported to have been issued by the Office of the Birth & Death Registration of the Government of the People's Republic of Bangladesh. It is again signed by Chairman of Paroli Union Parishad and the date of birth AJN 6 of the applicant is stated to be 25/3/1986. The applicant has prayed that the Superintendent of Yerwada Central Prison, Pune, should be directed to make arrangements for ossification test of the applicant and submit report to this court. It is also prayed that such enquiry may be directed to be conducted as may be found necessary. He has also prayed that the impugned order of conviction and sentence be recalled. 4. We have heard Mr. Mahimkar, learned counsel appearing for the applicant. Mr. Mahimkar had conducted the case on behalf of the applicant in the trial court. Mr. Mahimkar confirmed that the point which is agitated in this application was never raised during the course of trial at any stage. It is pertinent to note that the charge was framed on 18/12/2003. At that time, the applicant gave his age as 20 years. Learned Judge has noted his age as 20 years. As per prosecution case, the incident had taken place between 19 hours of 28/5/2003 and 4.30 hours of 29/5/2003. Therefore, as stated by the applicant, if as on 18/12/2003, he was 20 years of age, on the date of incident, he was above 18 years. After the trial AJN 7 court passed its judgment on 27/10/2004, till 18/2/2008, the applicant never made any application to any court. After four years from the date of judgment, now this point is raised. Nothing prevented the applicant from informing his advocate Mr. Mahimkar that he was a juvenile when this offence took place. We are, therefore, of the opinion that this belated plea which is clearly an afterthought taken up to avoid sentence, if it is confirmed, must be rejected. Hence, the application is rejected. [SMT. RANJANA DESAI, J.] [R.Y. GANOO, J.]