2014 ALL MR (Cri) 1169
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

V.K. TAHILRAMANI AND V.L. ACHLIYA, JJ.

Sandeep Kisan Waghe Vs. The State Of Maharashtra

Criminal Application No. 984 of 2010,Criminal Appeal No. 784 of 2009

4th December, 2013

Petitioner Counsel: Mr. ARFAN SAIT
Respondent Counsel: Mrs. M.M. DESHMUKH

Juvenile Justice (Care and Protection of Children) Act (2000), S.2(K) - Juvenile Justice (Care and Protection of Children) Rules (2007), R.12(3)(a) - Claim of juvenility - Proof - Applicant seeking benefit of juvenility by contending that he was juvenile at time of incident - No documentary evidence to support his claim - Ossification test is directed to be conducted - Further, in application he stated that he was 17 years, but in his evidence stated that he was 16 years old at time of incident - As per school record produced by respondent, he was 20 years on date of incident - Ossification test is not considered when school leaving certificate is there - Hence, applicant was not juvenile and not entitled to benefit of juvenility. (Paras 3, 7, 10)

JUDGMENT

SMT. V.K. TAHILRAMANI, J. :- Heard both sides.

2. The case of the applicant is that he was juvenile in conflict with law at the time of incident. The incident has taken place on 3/5/2005. The claim of the applicant is that he was 17 years old at the time of incident, hence, he should be given benefit of the Juvenile Justice (Care and Protection of Children) Act, 2000. Pursuant to the stand taken by the applicant, directions were issued to the sessions court, Thane, to allow the parties to adduce evidence and to record findings. The sessions court has inquired into the matter and forwarded the finding that the applicant was not a juvenile at the time of incident and consequently he is not entitled to get benefit of juvenility.

3. The applicant did not file any documentary evidence to support his claim of being 'a juvenile'. Before the sessions court the applicant has examined three witnesses i.e. himself as AW 1, his father Kisan as AW 2 and his mother Vanita as AW 3. The applicant has mentioned in his application that at the time of the incident, he was 17 years old. He is resident of Taklipada, which is a remote tribal area. He has no document of his age proof like school certificate, birth certificate and, therefore, he seeks to undergo medical examination for determination of his age. However, in his evidence, the applicant has admitted that he has studied upto 1st standard. He has further stated that at the time of incident he was 16 years of age. Thus his stand in relation to his age at the time of the incident is also not consistent. In his application he has stated that he was 17 years at the time of the incident, however, in his evidence he has stated that he was 16 years old at the time of the incident.

4. It is further pertinent to note that the father of the applicant has stated that he had admitted the applicant in Zillah Parishad School, Taklipada, Taluka Wada, District Thane. AW 3 Vanita, who is the mother of the applicant has stated that the applicant has studied upto 2nd or 3rd standard. The entry regarding the date of birth of the applicant was taken by the school teacher as stated by the father AW 2 of the applicant.

5. At the time of arrest the applicant gave his name as 'Sandeep Kisan Waghe. However, AW 3 Vanita, who is the mother of the applicant has stated that Sandeep Kisan Diwa and Sandeep Kisan Waghe are the names of one and the same person. Both AW 2 and AW 3 have admitted in their cross-examination that surname of the applicant is actually Diwa.

6. On the other hand the respondent State has examined one witness namely Kamlakar Shivram More (PW 1), who was Headmaster of the Zillah Parishad School, Taklipada, Taluka Wada, District Thane. He has proved the entries in the extract of general register of the said school vide Exh.-13 and school leaving certificate of the applicant vide Exh.-12. The applicant's name is appearing in the said register at serial No. 120 and his date of birth is shown as 5/5/1984. He has proved the entry in the general register extract vide Exh.-13. He has also proved entry in the school leaving certificate issued by him vide Exh.-12. Therefore, it is clear that as per school record the date of birth of the applicant is 5/5/1984. Exh.-12, shows that the applicant left the school from 3rd standard as he was continuously absent from the school. Thus it is clear that on the date of incident the applicant was 20 years 11 month and 29 days.

7. Mr. Sait submitted that the applicant was referred for ossification test to the Medical Board, Civil Hospital, Nasik through the Superintendent of Jail, Nasik Road vide letter dated 5/9/2013. The applicant was then transferred to Medical Board, SBH Government Medical College, Dhule, Forensic Medicine and Toxicology through District Prison, Dhule and the medical board conducted ossification test of the applicant on 18/9/2013. As per Ossification Test Certificate (Exh.-14) the age estimation of the applicant as on 18/9/2013 is about 22+2 year. Mr. Sait contended that this shows that the applicant was less than 18 years of age on the date of incident.

8. Section 2(k) of the Act defines term juvenile as under:

"Juvenile" or "child" means a person who has not completed eighteenth year of age;

Section 2(i) defines the term "juvenile in conflict with law" as under:

"Juvenile in conflict with Law means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence;

Juvenile Justice (Care and Protection of Children) Rules 2007, laid down the procedure to be followed in determination of age under Rule 12,

Sub Rule (3) of Rule 12 runs as under:

"R.12(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 certificate, 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), to (iii) of 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 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,----

As discussed above, the applicant had attended Zillah Parishad School Taklipada, as his first school and he studied upto 3rd standard. As per general register extract Exh.13 and school leaving certificate of the applicant Exh. 12, the date of birth of the applicant is 5.5.1984. Therefore, on the date of offence, the applicant was not a juvenile. Once documentary proof of the age of the applicant is available, the ossification test would not be useful for the age determination.

9. As per Rule 12 (3) (a) (ii) the date of birth certificate from the school first attended is sufficient compliance in respect of age determination enquiry. Only in the absence of documentary proof as mentioned in Sub Rule 3 (a)(i)(ii)(iii), medical opinion is to be sought. In the present case, since the applicant has mentioned in his application that he has no documentary proof about his age, the ossification test was directed. AW 2 Kisan, the father of the applicant admitted the applicant in the Zillah Parishad School, Taklipada. Therefore, when certificates from the said school vide Exh.12 and 13 as to date of birth of the applicant are available, age estimation certificate vide Exh.14 on the basis of Ossification test cannot be considered. Ossification test certificate is helpful only in cases of absence of documentary evidence as to the age as laid down in above mentioned rules.

10. The learned Judge has carefully considered all the aspects and thereafter, rightly arrived at a conclusion that the applicant was not a juvenile and, therefore, he is not entitled to get benefit of juvenility. We find no error in the order, hence the application is rejected.

11. Place the appeal for hearing on final hearing board in the week commencing from 9/12/2013.

12. Office to communicate this order to the appellant, who is in Nasik Road Central Prison.

13. At this stage, we must record our appreciation for Mr. Arfan Sait, the advocate appointed by this Court to represent the applicant. We found that he had meticulously prepared the matter and he has very ably argued the matter. We quantify legal fees to be paid to him by the High Court Legal Services Committee at Rs.2,000/-.

Application dismissed.