Case Note & Summary
The appellant, Chhotu @ Asif Istraeel Shaikh, was convicted under Section 302 read with Section 34 of the Indian Penal Code (IPC) by the Sessions Court in Sessions Case No.363 of 2005, along with two other accused. He was sentenced to life imprisonment. During the pendency of his appeal before the Bombay High Court, he filed an application claiming that he was a juvenile on the date of the offence (3rd June 2005). The trial court, following Rule 12(3)(b) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, ordered an ossification test, which estimated his age between 20 to 25 years. However, applying the rule, the court concluded that on the date of the offence, the appellant was below 18 years and thus a juvenile in conflict with law. The trial court forwarded its findings to the High Court. The appellant's counsel argued that these findings should be accepted. The High Court, after considering the submissions, accepted the finding that the appellant was a juvenile on the date of the offence. Consequently, the court held that the conviction under Section 302 read with Section 34 IPC was not interfered with, but the sentence could not be sustained as per the Juvenile Justice Act. The court directed that the matter be placed before the Juvenile Justice Board for appropriate orders regarding the sentence, in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000.
Headnote
A) Juvenile Justice - Determination of Age - Ossification Test - Rule 12(3)(b) of Juvenile Justice (Care and Protection of Children) Rules, 2007 - The appellant claimed juvenility during pendency of appeal; the trial court ordered ossification test which indicated age between 20-25 years, but applying the rule, the court held that on the date of offence (3rd June 2005) the appellant was below 18 years and thus a juvenile in conflict with law. The findings were forwarded to the High Court. (Paras 2-5)
B) Criminal Law - Murder - Section 302 read with Section 34 IPC - The appellant was convicted for murder along with co-accused. The High Court, while accepting the juvenile finding, did not interfere with the conviction but directed that the matter be placed before the Juvenile Justice Board for appropriate orders regarding sentence. (Paras 1, 5)
Issue of Consideration
Whether the appellant was a juvenile on the date of the offence and the consequent effect on the conviction and sentence.
Final Decision
The High Court accepted the finding that the appellant was a juvenile on the date of the offence. The conviction under Section 302 read with Section 34 IPC was upheld, but the sentence was set aside. The matter was directed to be placed before the Juvenile Justice Board for appropriate orders regarding the sentence in accordance with the Juvenile Justice (Care and Protection of Children) Act, 2000.
Law Points
- Juvenile determination
- ossification test
- Rule 12(3)(b) of Juvenile Justice Rules 2007
- Section 302 read with Section 34 IPC
- Juvenile Justice (Care and Protection of Children) Act 2000
Case Details
2011 LawText (BOM) (03) 131
Criminal Appeal No.423 of 2009
B. H. Marlapalle, A.M. Thipsay
Dr. Yug Mohit Chaudhari i/b. Ms. Tasneem E. Kanthawala for the appellant, Mrs. A.S. Pai, APP for the State
Chhotu @ Asif Istraeel Shaikh
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Nature of Litigation
Criminal appeal against conviction and sentence for murder under Section 302 read with Section 34 IPC.
Remedy Sought
The appellant sought acceptance of the finding that he was a juvenile on the date of the offence and appropriate relief.
Filing Reason
The appellant was convicted and sentenced for murder; during appeal, he claimed juvenility.
Previous Decisions
The trial court convicted the appellant under Section 302 read with Section 34 IPC and sentenced him. During appeal, the trial court, on application, found the appellant to be a juvenile on the date of the offence.
Issues
Whether the appellant was a juvenile on the date of the offence.
What is the effect of the juvenile finding on the conviction and sentence.
Submissions/Arguments
The appellant's counsel argued that the findings of the Additional Sessions Judge in the order dated 21st January 2011 do not suffer from any error and should be accepted.
Ratio Decidendi
The determination of juvenility under the Juvenile Justice Act, 2000, based on ossification test and Rule 12(3)(b) of the Rules, 2007, can be raised even during appeal, and if the accused is found to be a juvenile on the date of the offence, the sentence cannot be sustained and must be remitted to the Juvenile Justice Board for appropriate orders.
Judgment Excerpts
The appellant was tried as accused No.3 in Sessions Case No.363 of 2005 and as per the judgment and order dated 10th August, 2006 the appellant along with accused No.4-Arjul Nepal Gazi and accused No.5-Lambu @ Aminuru Ijul Gazi has been convicted and sentenced for the offence punishable under Section 302 read with Section 34 of I.P.C.
By following the requirements of Rule 12(3) (b) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 the trial Court ordered ossification test to be carried out for determination of the appellant’s age and he was sent to the Civil Hospital at Thane.
The Court accepted the said opinion and having regard to the scheme of Rule 12(3)(b) of the Rules of 2007 it held by its order dated 21st January, 2011 that on the date of the offence i.e. on 3rd June, 2005 the appellant was below the age of 18 years and, therefore, a juvenile in conflict with law.
Procedural History
The appellant was convicted and sentenced by the Sessions Court on 10th August 2006. He filed an appeal before the High Court on 6th April 2009. During the pendency of the appeal, he filed an application claiming juvenility, which was decided by the Additional Sessions Judge on 21st January 2011, who found him to be a juvenile. The findings were forwarded to the High Court, which then passed the present judgment on 22nd March 2011.
Acts & Sections
- Indian Penal Code, 1860 (IPC): 302, 34
- Juvenile Justice (Care and Protection of Children) Act, 2000:
- Juvenile Justice (Care and Protection of Children) Rules, 2007: Rule 12(3)(b)
