1 IN THE HIGH COURT OF JUDICUATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1370 OF 2009 IN CRIMINAL APPEAL NO. 1271 OF 2008 Kashiram Lahanu Mohondkar. .. ... Applicant. Versus State of Maharashtra. .. ... Respondent. Mrs. Smita Kadu, Advocate appointed for the Applicant. Mrs. P. P. Shinde, APP for the Respondent. CORAM : B. H. MARLAPALLE & A. A. SAYED, JJ. DATED : 16TH APRIL, 2010 P. C.: This application has been received from the Jail as the applicant is undergoing sentence for life on account of his conviction in Sessions Case No. 133 of 2006 for the offence punishable under Section 302 of the Indian Penal Code. Against the said conviction, the applicant has filed Criminal Appeal No. 1271 of 2008 which has been admitted on 12th December, 2008. It appears that the applicant did not apply for bail pending the appeal. 2. By this application for the first time, the applicant claims that he was a juvenile i.e. less than 18 years of age on the date of the offence i.e. 19th April, 2006 and he therefore seeks a declaration as such. He claimed that he 2 was of the age of 16 and ½ years on 19th April, 2006, but he did not have any document in support of his claim and more so because he is an illiterate person and despite his best efforts he could not get any certificate of his birth date either from the Village Panchayat or from the Police Patil. He also stated that he is born in a tribal family and his parents were illiterate and they used to shift from place to place in search of labour. They did not have a permanent place of residence. 3. By our order dated 23rd March, 2010 we had directed the applicant to be produced before the Medical Board so as to determine his age as at present and accordingly he has been examined by the Medical Board at Sir J. J. Group of Hospital at Mumbai on 29th March, 2010 and the Board has submitted its report to us through the learned APP. As per the said report, the applicant's age is above 20 years as on 29th March, 2010. We have also noted that the Medical Board report is based on the ossification method for determining the age. 4. In the case of Jaya Mala v/s Home Secretary, government of Jammu & Kashmir & Ors., (1982) 2 SCC 538, the Supreme Court observed “It is not notorious and one can take judicail notice that the margin of error in age ascertained by radiological examination is 2 years on either side”. A three Judge Bench in the case of Ramdeo Chauhan alias Raj Nath v/s State of Assam, (2001) 5 SCC 714, reconsidered the decision in the 3 case of Jaya Mala (supra) and it was held that the opinion of the doctor regarding the determination of age is not the last word and the Court has to base its conclusion upon all the facts and circumstances disclosed on examining of the physical features of the person whose age is in question, in conjunction with such oral testimony as may be available. The Court further held that an X-ray ossification test may provide a surer basis for determining the age of an individual than the opinion of a medical expert but it can by no means be so infallible and accurate a test as to indicate the exact date of birth of the person concerned and too much of reliance cannot be placed upon textbooks on medical jurisprudence and toxicology while determining the age of an accused. Again in the case of Vishnu alias Undrya v/s State of Maharashtra, (2006) 1 SCC 283, the Supreme Court while considering the report submitted by the doctor regarding the determination of the prosecutrix's age estimated on the basis of X-ray and while refusing to accept the same, held that the opinion of the Medical Officer would be advisory in character and would not be binding while determining the age of the prosecutrix. In the case of Kamal Kishore v/s State of H. P., (1997) 8 SCC 720, the doctors determined the age of the prosecurtix but it was disbelieved because no ossification test was done. The general trend followed in criminal jurisprudence in India is to give more weightage to the ossification test rather than depending on the radiological test alone, though the test for itself is generally not taken as a conclusive proof for the determination of the age. 4 5. Be that as it may, in the instant case the Medical Board opined that the applicant was above 20 years of age as on 29th March, 2010 and if a margin of 2 years on either side is taken into consideration, it would be safe to treat that he was between the age group of 16 years to 18 years as on 19th April, 2006 and we are saying so because the medical opinion given by the Medical Board is not based on radiological test but it is in fact based on the ossification test where the margin on either side should be less than 2 years. We, therefore, hold that the applicant was juvinile as defined under Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 on the date of the offence and thus he was a juvenile in conflict with law as per Section 2(l) of the said Act. 6. A similar case was considered by this Court in Sou Motu Writ Petition No.1 of 1999 in case Vijay Narayan Patil v/s State of Maharashtra & Ors. reported in 2009 All MR (Cri.) 2694. In fact in the Sou Motu Writ Petition certain directions were issued by the Division Bench to the Principal Sessions Judges of all the districts, so as to register and decide such applications within 90 days of their receipt and also directions were given to the Jail Superintendents to prepare a list of juveniles in conflict with law in their prisons, if not already done, and to forward the same to the respective Sessions Court who had passed the order of conviction. 5 7. In the instant case, the applicant was taken into custody on 20th April, 2006 and thus he is undergoing sentence for the last about 4 years. Section 15(g) of the Juvenile Justice Act provides for a maximum detention of 3 years in the case of a juvenile who is found to be guilty of the offences punishable under the Indian Penal Code and the proviso below section 16 of the said Act imposes a maximum period of 3 years of sentence. Section 7-A of the Juvenile Justice Act as amended by Act 33 of 2006 lays down the procedure to be followed when a claim of juvenility is raised before any Court and under the proviso to the said Section the question of juvenility can be raised and is to be recognised for determination at any stage and even after the final disposal of the case and even if the juvenile had ceased to be so on or before the commencement of the Act. The expression `any Court' in Section 7-A(1) of the Juvenile Justice Act includes the Court of Appeal which hears the claim of juvenility after the case is disposed off in the trial Court. 8. The learned Counsel appearing for the applicant has also relied upon the Constitution Bench decision in the case of Pratap Singh v/s The State of Jharkhand & Anr., reported in AIR 2005 SC 2731 and the subsequent decision after the amended Act 33 of 2006 was brought into force in the case of Hari Ram v/s State of Rajasthan & Anr., reported in 2009 (6) Scale 695. 6 9. Mrs. Shinde, the learned Asstt. Public Prosecutor does not dispute the Medical Board's report and she urged before us that inspite of the directions given in Sou Motu Writ Petition No. 1 of 1999, the Sessions Courts and the Jail Superintendents do not appear to have taken adequate steps to make survey of the juveniles in conflict with law and obtain their applications for determination. 10. On the basis of the Medical Board's report dated 29th march, 2010, this application succeeds and we hold that as on 19th April, 2006 the applicant was a juvenile within the meaning of Section 2(k) of the Juvenile Justice Act and thus juvenile in conflict with law within the meaning of Section 2(l) of the said Act, inasmuch as he was less than 18 years of age on that day i.e. the day of offence. 11. Hence, this application succeeds. The Superintendent of Nasik Road Central Prison at Nasik is hereby directed to set the applicant (accused No.1) free forthwith, unless he is required to undergo sentence or to be detained in any other case. 12. We direct the Director of Prosecution to circulate a copy of the decision of this Court in Sou Motu Writ Petition No. 1 of 1999 reported in 2009 All MR (Cri.) 685 to all the Jail Superintendents in the State of 7 Maharashtra for compliance of the directions issued therein. We also direct the Registrar (Judicial) of this Court to circulate a copy of the said decision amongst all the Principal District Judges all over the State of Maharashtra inviting their attention to the directions issued by this Court and to call upon them to submit compliance report by 30th June, 2010. 13. The professional fees of the learned appointed advocate is determined at Rs.3,000/- and the Maharashtra Legal Services Authority to pay the same to her. Sd/- (B. H. MARLAPALLE, J.) Sd/- (A. A. SAYED, J.)