Toshif Ali @ Raju vs State (Nct) Of Delhi
2011 Latest Caselaw 3156 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                             Judgment delivered on 06.07.2011

+      CRL. M. A. 19009/2010 & CRL.A. 384/2010


TOSHIF ALI @ RAJU                                        ...     Appellant


                                       - versus -

STATE (NCT) OF DELHI                                     ...     Respondent

Advocates who appeared in this case:

For the Appellant         : Mr Ravindra Narayan
For the Respondent        : Mr Sanjay Lao

CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MS. JUSTICE VEENA BIRBAL

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in Digest?

BADAR DURREZ AHMED

1. This is an application filed on behalf of the appellant claiming that he was

a juvenile in conflict with law as defined in Section 2(l) of the Juvenile Justice

(Care and Protection of Children) Act, 2000 (hereinafter referred to as 'the said

Act') on the date of commission of the alleged offence, which was 16.04.2005.

Inasmuch as no school record or municipal records were available insofar as the

appellant is concerned, which would have given us an indication about his age,

the provisions of Rule 12 (3) (b) of the Juvenile Justice (Care and Protection of

Children) Rules, 2007 (hereinafter referred to as 'the said Rules') would apply.

We have also noted that at the time of the arrest, the age of the appellant has not

been indicated in the arrest memo and at the time of recording of the statement

under Section 313 Cr. P.C on 20.07.2009, the appellant had given his age as 22

years. This fact has also been noted in our order dated 02.05.2011. We had also

observed that on the date of occurrence that is on 16.04.2005, the age of the

appellant would, according to the age recorded in the said statement, work out

to be around 18 years. It is in these circumstances that we had directed that the

ossification test be conducted of the appellant so as to determine his age and we

had directed that the appellant be produced before the All India Institute of

Medical Sciences on 06.05.2011 in the first instance and on other dates as

directed by the Medical Superintendent of AIIMS. We had also required that

the report be submitted to this Court.

2. We are now in receipt of a letter dated 17.06.2011 from the Medical

Superintendent to the Registrar of this Court enclosing the original report of the

Medical Board constituted by AIIMS for the medical examination (ossification

test for determination of age) of the appellant Toshif Ali @ Raju, son of Mohd.

Mukhtar. The report of the Medical Board is dated 15.06.2011. The Medical

Board comprised of the following persons:-

1. Dr Sanjeev Lalwani Assoc. Professor of Forensic Medicine - Chairperson

2. Dr Vijay P Mathur Assoc. Professor of CDER - Member

3. Dr Smriti Hari Assoc. Professor of Radiodiagnosis - Member

4. Dr Mahesh R.

Department of Hospital Administration - Member Secy.

As per the report, according to the findings of the physical, dental and

radiological examinations, the Medical Board was of the considered opinion

that the bone age of the appellant Toshif Ali @ Raju, son of Mohd. Mukhtar

was between 25 years to 28 years.

3. Thus, as on 09.06.2011, the age of the appellant on the lower end is

determined to be 25 years. Since the date of the incident was 16.04.2005, this

would make his age on the date of the incident to be approximately 18 years, 10

months and 7 days.

4. In view of our decision in the case of Jitender @ Jitu v. State in Crl. M.

A. 15749/2010 and Crl. A. 438/2010, decided on 03.06.2011, a benefit of one

year margin on the lower side is to be given in view of the provisions of Rule

12(3)(b) of the said Rules, in case the exact assessment of age cannot be done.

We have also noted that in the present case the Medical Board has given a range

of ages between 25 and 28 years and, therefore, the exact assessment of age is

not possible. The court has discretion in giving this benefit of margin of one

year on the lower side to the appellant. Considering the circumstances of the

present case and finding that they are more or less similar to that in the case of

Jitender @ Jitu (supra), we feel that the benefit of one year on the lower side

ought to be given to the present appellant also. If we do that, the age of the

appellant on the date of the incident would be approximately 17 years, 10

months and 7 days, which would make him a juvenile in conflict with law

inasmuch as his age would be less than 18 years on the date of the incident.

That being the position, we find that as the appellant has already undergone

imprisonment for over six years and two months, he cannot be detained any

further inasmuch as even the maximum of three years detention period

prescribed under the said Act has been exceeded. The learned counsel for the

appellant has stated that the appellant does not want to challenge the conviction

and that it is only with regard to the sentence that he is seeking the benefit under

the said Act. In view of the provisions of Section 15 and 16 of the said Act, the

maximum period of detention, even in terms of the said Act, in respect of a

juvenile in conflict with law could have been three years. Since the appellant

has already been in custody for more than three years, he is entitled to be set at

liberty forthwith.

5. Consequently, this application as also the appeal are disposed of by

maintaining the conviction and as such dismissing his appeal with regard to

conviction, yet, with regard to the sentence the same is set aside and the

appellant is directed to be set at liberty. This application as well as the appeal

stand disposed of accordingly.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J JULY 06, 2011 SR