[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1 OF 2008 WITH APPLICATION NO.106 OF 2008 Umesh Mahaveer Singh ] Age 18 years, ] Occ: Student, ] Residing at Baburao Kadam ] Chawl, Room No.4, Ambedkar ] Nagar, Nalasopara, Taluka ] Vasai, Dist.Thane ] (At present in Thane Central] Central Prison, Thane) ]..Appellant Vs. The State of Maharashtra ]..Respondent ... Mr.R.D.Suryawanshi Advocate for Appellant Mr.Rajesh More A.P.P. for the State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : APRIL 17, 2008 DATE : APRIL 17, 2008 DATE : APRIL 17, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Heard the learned advocate for the appellant and the learned A.P.P. for the State. 2. The appellant-original accused has challenged the judgment and order dated 12.12.2007 passed by the learned Additional Sessions Judge Vasai in Sessions Case No. 127 of 2007. By the said [-2-] judgment and order, the learned Sessions Judge convicted the appellant under Sections 376 read with Section 511 of IPC and sentenced him to RI for five years and to pay a fine of Rs.2000/- i/d R.I. for four months. 3. The prosecution case is that when the prosecutrix had gone to the house of the appellant. He removed his clothes as well as her clothes and slept on her body. No injuries were found on the body of the prosecutrix. On the evidence of prosecutrix and her mother, appellant came to be convicted and sentenced as stated above. 4. The learned Advocate for the appellant states that the appellant was a juvenile at the time of the incident. The incident had taken place on 16.7.2004. The date of birth of the appellant was 25.7.1986. Thus, the appellant was below 18 years and he should be given benefit under the Juvenile Justice Act. 5. The point regarding juvenility was not raised before the Sessions Court and hence, the learned Judge had no occasion to conduct any enquiry or [-3-] refer the accused to the Juvenile Justice Board. The said point is raised for the first time before this Court. Reliance is placed on the School Leaving Certificate which shows that date of birth of the appellant is 25.7.1986. The learned APP on instructions states that the genuineness of the School Leaving Certificate is not doubted by the prosecution. The School Leaving Certificate clearly shows that the appellant was a minor and he was juvenile at the time of the incident. The Investigating Officer has ascertained the veracity of School Leaving Certificate issued by Head Master of Lokmanya Hindi High School Nala Sopara (East). It is found that there is no doubt about the genuineness of the School Leaving Certificate. It should be stated here that Investigating Officer has conducted the enquiry pursuant to the order of this Court dated 3.3.2008 and the Investigating Officer has submitted report. The said report is taken on record and marked "X" for identification. The report clearly shows that the appellant was a juvenile at the time of the incident. 6. In the case of Upendra Kumar Vs. State of Upendra Kumar Vs. State of Upendra Kumar Vs. State of Bihar reported in 2005 SCC (Cri.) 778, Bihar reported in 2005 SCC (Cri.) 778, Bihar reported in 2005 SCC (Cri.) 778, the accused [-4-] raised the ground in the Supreme Court for the first time that he was a juvenile at the time of the offence. The Supreme Court observed therein that on the date in question, the fact that accused was below 18 years of age, was fully established and that instead of referring the accused to the Juvenile Justice Board, the Supreme Court maintained the conviction but quashed the sentence. In the present case, in view of the report submitted by the Officer which clearly shows that the accused was a juvenile at the time of the incident, I am inclined to take a similar view. 7. The conviction of the appellant under Section 376 of IPC read with Section 511 of IPC is maintained. However, sentence is quashed. The appellant be released forthwith if not required in any other case. 8. Appeal is partly allowed and is disposed of. In view of the above, the Criminal Application No.106 of 2008 is also disposed of accordingly. [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]