Court Should Lean In Favour Of Declaring Accused A 'Juvenile' In Borderline Cases; Bombay HC Sets Aside Death Penalty [Read Judgment]
The Bombay High Court on Tuesday allowed a criminal application filed by one Sandeep Shirsat, convicted of murder and rape and declared him to be a juvenile at the time of crime. Consequently, Shirsat will not face the death penalty awarded to him by the trial court.
Division bench of Justice BP Dharmadhikari and Justice SK Shinde set aside the findings recorded against the applicant accused by the trial court in judgement dated May 11, 2017 convicting him under Sections 302, 376(2)(g), 326 of the Indian penal Code.
According to the applicant convict, on May 9, 2012, the date of crime, he was 16 years and 9 months old and therefore, a juvenile. He was convicted by the Additional Sessions Judge, Thane through judgment and order dated May 11, 2017 along with accused no.1 under Sections 302, 376(2)(g), 326 read with section 34 of Indian Penal Code.
For the offence under section 302 accused were sentenced to death while for the offence under section 376(2)(g) IPC, they have been sentenced to life imprisonment for the remainder of their life and for the offence under section 326 read with section 34 IPC, they were sentenced to 10 years.
On May 2, 2019, High Court directed the convicting court to conduct an enquiry into Sandeep's age after noticing that though an opportunity was given to State to look into the plea of juvenility, no specific stand was being taken.
Accordingly the Additional Sessions Judge, Thane by a confidential report dated August 16, 2019 pointed out that as per school leaving certificate, the date of birth of the applicant was August 29, 1995 and as per report of Government Hospital, Vashi the radio graphic bone age of the accused is more than 18 years at the time of committing of the offence and his present age on August 01, 2019 as per ossification test is more than 25 years.
APP Aruna Pai appeared for the State and Advocate Ragini Ahuja instructed by Dr.Yug Chaudhary appeared on behalf of the applicant.
Adv Ragini relied upon the apex court's judgement in Ashwani Kumar Saxena Versus State of Madhya Pradesh and submitted that the trial court has not recorded any definite finding on the question of date of birth or then about the juvenility of the said accused. Further, the entry in the school records is not found to be tampered with and 29/08/1995 ought to have been accepted as the date of birth of the accused.
The opinion expressed by the radiologist of Navi Mumbai Municipal Council Hospital is on the basis of x-ray reports and it is therefore, not determinative. The report of the Assistant Professor, Department of Forensic Medicine & Toxicology is again not a reliable document, Adv Ragini contended. She submitted that there can be error of two years on either side in these documents.
APP Pai on the other hand relied upon Apex Court's judgement in Omprakash Vs. State of Rajasthan and Others wherein the accused lied about his name and tried to take advantage of the difference in his name and the name mentioned in the certificate relied upon by him. Pai told the bench that when in such matters, when there is no other option left, belatedly, defence of juvenility is taken. Such defence should not be entertained. The age was determined before commencement of the trial in the year 2012 itself and that determination was not questioned by the applicant, Pai said.
She relied upon the ossification test and said at the time of crime in 2012, the applicant was above 18 years.
In Ashwanikumar (supra), Supreme Court expressed unhappiness over the manner in which the trial court and the appellate court dealt with the process of determining age of the accused. Court referred to the said judgement and noted-
"Section 7A of Juvenile Justice Act, 2000 and Rule 12 of the 2007 Rules were not properly considered. In paragraph 13 Hon'ble Apex Court points out that if two views are possible on the age of the juvenile, the court should lean in favour of holding the accused to be juvenile in the border line cases. In paragraph 25 Hon'ble Apex Court explains that section 7A necessitates enquiry and not investigation or trial."
In the said judgement, apex court noted that at first court can obtain the matriculation or equivalent certificate of the accused, if available. Only in the absence thereof, the court can obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of school record, the court can look for the birth certificate given by the Corporation or the municipal authority. The question of obtaining the medical opinion arises only if these documents are not available.
The admission record of Zilla Parishad school shows that the applicant was admitted on June 27, 2003 and at that time his date of birth has been recorded as 29/08/1995.
Further, Court noted after examining the medical reports of the accused that his exact age has not been worked out. Thus, the application was allowed and Court observed-
"If possibility of error on either side is kept in mind, it cannot be said that those medical papers established the age of accused no. 2 to be above 18 years on the said date. It cannot be concluded that 29/8/1995 is not the date of birth of accused no.2. In this situation, we find that the date 29/08/1995 as mentioned in the school records on 27/6/2003 needs to be accepted and acted upon. Accordingly, we find accused no. 2 to be a juvenile."
Court directed the State to produce the accused before Juvenile Justice board for further process.