PAPPU ANANT GHAYALKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant, who is original accused 2, was tried along with one Rajesh Balkrishna Pille in the Court of Adhoc Additional Sessions Judge at Pune in Sessions Case No.158 of 2001, for offences punishable under Sections 302, 324, 506(ii) read with Section 34 of the Indian Penal Code (for short, "the IPC"), under Section 37(1) read with Section 135 of the Bombay Police Act and under Section 4 read with Section 25 of the Arms Act. By judgment and order dated 21/5/2002, the appellant was convicted for offence punishable under Section 302 read with Section 34 of the IPC and was sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 500/-, in default, to suffer rigorous imprisonment for 3 months. He was also convicted for offence punishable under Section 324 read with Section 34 of the IPC and sentenced to suffer rigorous imprisonment for one month and to pay a fine of Rs.300/-, in default, to suffer rigorous imprisonment for one month. He was also convicted for offence punishable under Section 506(ii) read with Section 34 of the IPC and was sentenced to suffer rigorous imprisonment for one month and to pay a fine of Rs.100/-, in default, to suffer rigorous imprisonment for one week. Substantive sentences were ordered to run concurrently. The appellant was acquitted of the offence punishable under Sections 37(1) read with Section 135 of the Bombay Policez and under Section 4 read with Section 25 of the Arms Act. In the present appeal, he has challenged the said judgment and order of conviction and sentence.

(2.) The present appeal was admitted on 16/7/2007. During the pendency of this appeal, the appellant preferred application dated 11/4/2009 through jail, to the Sessions Court, Pune. In that application, he has stated that when the incident took place, he was below 18 years of age. According to him, he was juvenile in conflict with law within the meaning of Juvenile Justice (Care and Protection of Children) Act, 2000 (for short, "the said Act"), and, therefore, he is entitled to be released forthwith as he was in custody for more than 3 years. He claimed the benefit of Section 15(g) of the said Act.

(3.) The said application was assigned by the then Principal & Sessions Judge, Pune to the District Judge II and Additional Sessions Judge, Pune. After receipt of this application, the Judicial Magistrate, First Class of Kirkee, Pune, was directed to hold an inquiry to ascertain the age of the appellant on the date of commission of offence. The Judicial Magistrate, First Class Mr. R.M. Satav conducted an inquiry. He considered the School Leaving Certificate and Birth Certificate of the appellant. He also took into account the opinion of the medical officer and arrived at a conclusion that on the date of the commission of the crime, the appellant was less than 18 years of age. According to him, on the date of incident i.e. on 9/1/2001, he was aged about 17 years, 1 month and 17 days, the birth date of the appellant being 23/11/1983. On the basis of the report of the Judicial Magistrate, First Class, the Superintendent of Technical Branch of District Court, Pune, sought a direction as to whom the report should be sent for further orders. The said report was then placed before the District Judge III and Additional District Judge, Pune as directed by the then District & Sessions Judge, Pune. The District Judge III considered the report and observed that the appellant was a juvenile in conflict with law. She observed that the appellant was sentenced to suffer imprisonment for life on 24/6/2002. She further observed that since the appellant has undergone the sentence for a period of more than three years, in view of the judgment of this court in Suo Motu High Court on its own Motion V. The Chief Secretary, Government Of Maharashtra & Ors., 2009 AllMR(Cri) 685), he was entitled to be released. The Principal District & Sessions Judge, Pune, made an endorsement on the said report that since an appeal is pending in this court and the record and proceedings are lying in this court, it is desirable to make a reference to this court and seek appropriate direction. In view of this endorsement, learned District Judge III has made a reference to this court for necessary direction.