IMRAN ISLAM SALAMANI Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant i.e. original accused No. 2 had been convicted under Sections 120 -B and 364 -A read with 34 of IPC by judgment and order dated 19.03.2008 passed by 2nd Ad -hoc Additional Sessions Judge, Sewree in Sessions Case No. 213 of 2007. The appellant has preferred Cri. Appeal No. 641 of 2008 wherein he has challenged the said judgment and order of conviction. During pendency of the appeal, the appellant has preferred Cri. Application No. 951 of 2009 wherein he has stated that he was under 18 years of age at the time of the incident i.e. he was a juvenile in conflict with law, hence, he should be given benefit of Juvenile Justice (Care and Protection of Children) Act, 2000. The incident in question took place on 09.12.2006. The case of the applicant/appellant is that he is an illiterate person and he does not have any school leaving certificate nor can he produce any birth certificate. By order dated 11.09.2009, the applicant/appellant was directed to be produced before the Court on the next date. Accordingly, on 16.11.2009, the applicant was produced before the Court. The applicant stated that he had no documentary proof regarding his date of birth, hence, he requested for subjecting him to medical examination so as to determine his age. Therefore, the Chief Medical Officer of Nasik Road Central Prison was directed to take appropriate steps to get the applicant medically examined at the Civil Hospital, Nashik so as to determine his age on the date of the examination. Accordingly, Radiological examination was conducted on the applicant on 24.11.2009 and it was stated in the report that on the date of the examination, the age of the patient (appellant) was between 19 to 20 years.

(2.) ON the request of learned APP, the applicant's case was referred to the Medical Board at J.J. Hospital to determine the age of the applicant. The report of the Medical Board reveals that on 30.12.2009, the applicant was 20 years of age. By order dated 29.03.2010, this Court asked for fresh opinion of the Medical Board. The fresh opinion of the Medical Board dated 30.04.2010 shows that the applicant could be between the age of 25 to 40 years. In view of these three reports, this Court directed the Registrar (Judicial) to forward the medical reports dated 24.11.2009, 30.12.2009 and 30.04.2010 along with all annexures to the learned Addl. Sessions Judge at Sewree. This Court directed that on receipt of the said report, the learned Addl. Sessions Judge, Sewree to record the oral evidence of the medical witnesses. After recording the evidence, the same was directed to be submitted to this Court through the Registrar (Judicial). Accordingly, the report has been submitted by the learned Addl. Sessions Judge, Sewree. Six witnesses were examined by the learned Sessions Judge.

(3.) THEREAFTER , Dr. Rangnath was examined as witness No. 2. He is master of Dental Surgery in subject of Oral Medicine and Radiology. This witness took out x -ray of both jaws of the applicant. From the evidence of this witness, it is seen that on the date of the examination i.e. on 29.12.2009, the age of the patient could be between 18 to 25 years, however, from the cross -examination of this Doctor, it is seen that the third molar erupts in between 17 to 21 years. As per x -ray, third permanent molar was not completely erupted. This creates some doubt as to whether the applicant could be over 21 years of age on the date of his examination. Even otherwise this witness has stated that the lower age of the patient could be 18 years as on 29.12.2009, which means the applicant would be below 18 years of age at the time of the incident which occurred on 09.12.2006.