1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1383 OF 2002 Yogesh Nandu Yadav (Gawali) .. Appellant (Org.Accd.No.4) Vs. The State of Maharashtra and anr. .. Respondent Mr. Ghanshyam Upadhyay for appellant. Smt. V.R. Bhosale, APP for State. CORAM: B. H. MARLAPALLE & R. Y. GANOO, JJ. February 22, 2010. ORAL ORDER: (Per B.H. Marlapalle,J.): 1. The appellant (original accused no.4) has impugned the order of conviction and sentence passed by the learned Additional Sessions Judge at Nasik on 30/8/2002 in Sessions Case No. 95 of 2001. It appears that during the trial of the Sessions Case, the appellant had approached this court with a bail application and in support of the plea for being released 2 on bail, he had contended that he was born on 16/9/1983 and on the date of the offence i.e. on 4/12/2000 he was of the age of 17 years, 2 months and 18 days (less than 18 years of age) and accordingly under Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (the Juvenile Justice Act for short) his trial was required to be transferred to the Juvenile Board. Though the appellant was released on bail by this court, such a plea of juvenile in conflict with law was not taken on behalf of the appellant before the learned Additional Sessions Judge and consequently along with other accused he has been convicted for an offence punishable under Section 302 read with Section 34 and for other offences of IPC and sentenced to suffer life imprisonment. 2. However, during the course of hearing of this appeal, Criminal Application No. 1399 of 2009 was filed by placing reliance on the decision of the Supreme Court in the case of Hari Ram vs. State of Rajasthan [2009 (6) SCALE 695] and it was urged that the issue as to the date of birth of the appellant was required to be decided. A photostat copy of the school leaving certificate was also submitted along with the said application in support of the claim that the appellant was born on 16/9/1983. The said application was allowed by us partly, that is to the extent of directing the 3 learned Additional Sessions Judge to record additional evidence so as to decide the claim of the appellant that he was born on 16/9/1983. 3. The learned Additional Sessions Judge, Nasik, has submitted his findings dated 19/1/2010 and held that the appellant was successful in proving his date of birth as 16/9/1983. These findings have not been disputed by the State. It appears that along with the school leaving certificate at Exh.7, extract of Secondary School General Register (Admission) was placed at Exh. 8 and the extract of Primary General School Register was placed at Exh. 9. Smt. Anita Dilip Mesram, Senior Clerk from Deolali High School was examined at Exh.4 and all these three documents came to be proved through her oral depositions. This witness was not cross-examined by the learned APP before the Sessions Court. On the contrary, the evidence brought by the prosecution and filed at Exhs. 14 to 16 i.e. school certificates collected by the Senior Police Inspector, Nasik Road, corroborated the version of the accused. We have perused this record and noted that the findings recorded by the learned Additional Sessions Judge to hold that the appellant was born on 16/9/1983 are duly supported. 4. Mr. Upadhyay, the learned counsel for the appellant, has also 4 relied upon the decisions of the Supreme Court in the case of Raj Singh vs. State of Haryana [(2000) 6 SCC 759] and Babban Rai and anr. Vs. State of Bihar [2008 Cri. L.J. 1038]. 5. Once we hold, by confirming the findings recorded by the learned Additional Sessions Judge, that the appellant was born on 16/9/1983, he was less than 18 years of age on the date of the incident i.e. 4/12/2000 and, therefore, he would be entitled for the benefit of Section 7- A of the Juvenile Justice Act. As the issue of the appellant being a juvenile was raised during the pendency of the trial before this court in the bail application, it would be difficult to hold that such an issue was taken up for the first time in the appeal. The trial of the appellant was required to be separated and transferred to the Juvenile Board under Section 20 of the Juvenile Justice Act which was brought into force from 1/4/2001. Amendment Act 33 of 2006 by which Section 7-A has been incorporated in the Act was brought into force on 22/8/2006 and the Juvenile Justice Rules 2007 came to be framed after the said amendment was brought into force. The appellant, therefore, is entitled for the protection under Section 7-A of the Juvenile Justice Act. We also note that by now the appellant has reached majority and is no more a juvenile and, therefore, he cannot be sent 5 to the Juvenile Board to face the trial. Consequently, the impugned order of conviction and sentence has to be set aside. 6. In the premises, this appeal succeeds and the same is hereby allowed. The order of conviction and sentence passed on 30/8/2002 in Sessions Case No. 95 of 2001 is hereby quashed and set aside so far as it relates to appellant – accused no. 4. The appellant-accused no.4 shall be released from jail forthwith, unless required in any other case. The Registrar (Judicial) to communicate this order to the Superintendent, Nasik Central Prison forthwith telegraphically. (R. Y. GANOO,J.) (B. H. MARLAPALLE,J.)