STATE OF MAHARASHTRA Vs. JAGDISH SAGAR CHAUDHARI

JUDGEMENT

(1.) Four accused were prosecuted, one of whom was juvenile for offence of murder under Section 302 of IPC. Three of them were convicted by the Sessions Court by the judgment and order dated 9th January 2002 and death penalty was is cosed on them. The accused filed appeal against the order of conviction and sentence recorded against them in this Court. As the death penalty was imposed on the accused persons, reference was made to this Court by the Sessions Court for confirmation of the death sentence. When the master In the Confirmation Case reached for hearing before the Bench of this Court to which one of us (Parkar,J.) was party, plea was raised on behalf of accused no.4 that he was juvenile at the time of commission of offence which took place on 6th August 1997. By the order dated 4th March 2003 this Court had remanded the case of Santoshkumar Chaudhari, original accused no.4, to the Addl. Chief Metropolitan Magistrate, 40th Court. Girgaum, Mumbai for holding inquiry in respect of his age and to send the report to this Court with his finding about the age of accused Santoshkumar Chaudhari. By the said order both the sides were allowed to lead evidence with recard to the age of the said accused. On behalf of the accused evidence of Or. Patil, who had examined the said accused or 19th August 1997 was led. The said doctor had examined him at the instance of police and had issued certificate that the said accused was between the ages" of" 16 and 17 years. of the basis of certain tests including ossification test carries out by him. The evidence of Senior P.I. Balasanes Patil. Who was the Investigating Officer, was also lec before the Magistrate.

(2.) The learned Magistrate gave his finding that the accused was juvenile at the time of commission of the offence and sent his report dated 29th March 2003 to this court. The said report was challenged on behalf of the prosecution in this Court by filing affidavit. The matter has hear by the Division Bench of this Court with regard to the accestance of the report of the Magistrate about the age of the accused. The finding given by the Magistrate in his report was that on the date of the offence, accused-Satishkumar was setweer 14 to 15 years of age and, therefore, juvenile. The Division Bench of this Court, after considering the report and the submissions made on behalf of both the sides and considering the judgments of the Supreme Court, by organ sated 29th November 2003 rejected the application made on behalf of the prosecution to give finding contrary to the one arrived at by the Addl. Chief Metropolitan Magistrate by his report of 29th March 2003 and accepted the report. However. in the penultimate paragraph of the order the beyond had left the question whether the juvenility of the accused has to be decided with reference to the date of commission of offence or date of appearance before the competent authority to be decided by the Court hearing the Confirmation Case and the Appeal filed by the accused. Since the limited question has kept open, we heard, both the sides today before the Confirmation Case began for hearing.

(3.) On behalf of the accused reliance was placed on the judgment of the Supreme Court in the case of Umesh Chandra vs. State of Rajasthan reported in 1982 SCC (Cri) 396 in which while considering the provisions of the old Act of 198 it was held that the juvenility of the accused has to be considered with reference to the date of offence. So far as the prosecution is concerned, the reliance is placed on the decision of the Supreme Court in the case of Arnit Das v. State of Bihar reported in 2000 SCC (Cri) 962 in which it was observed that the juvenility of the accused has to be considered with reference to the date when he is available for administration of justice and justice delivery system. So far as this case is concerned, the date of occurrence is 6th August 1997 and the accused was arrested on 9th August 1997 and, therefore, it would not make much difference between the date of occurrence and the date when he was available for administration of justice. However; it would * be pertinent to point out that the judgment of the two Judge Bench of the Supreme Court in Arnit Das case referred to above was subsequently sought to be reviewed and. therefore. the matter was referred to the Constitution Bench in the case of Arnit Das v. State of Bihar reported in 2001 SCC (Cri) 1393. The case was referred to the Constitution Bench on the ground that the two Judge Bench deciding the case of Arnit Das v. State of Biha had not considered or overlooked the earlier view of the three Judge Bench in the case of Umesh Chandra v. State of Rajasthan reported in 1982 SCC (Cri) 396 wherein it had been held that the crucial date in such cases is the date on which offence was committed and not when the accused first appears in the Court in inquiry proceedings. While dismissing the review petition on the ground that issue referred to the Constitution Bench did not require consideration by the Constitution Bench, it was pointed out in paragraph 5 of the order by the Supreme court that in Arnit Das' case there was finding recorded in the inquiry conducted under Section 32 of the 1986 Act that the accused petitioner was not a juvenile on the date of the offence and the said finding had been confirmed right upto the Supreme court and, therefore, it was of no consequence whether the crucial date for the purpose of 1986 Act is the date of commission of the offence or the date when the accused appears in the Court in inquiry proceedings.