Vakeel v. State (NCT of Delhi)

2. Mr. Chaudhary, leamed counsel for the petitioner submits that after the order of conviction was affirmed by the High Court by a judgment dated 11.03.2011, the petitioner filed a W.P.(Crl). 1815/2014 on 06.08.2014 wherein the petitioner raised the plea of juvenility. The petitioner also prayed for conducting an ossification test on the petitioner with a view to determine his age. By an order dated W.P.(Crl).l072/2016 Page1of[5] 2016:DHC:9105 > 12.08.2015, Sh. Sanjay Sharma, Additional Sessions Judge-01, N-E District,Karkardooma Courts,Delhi ordered to getthe ossificationtest conducted on the petitionerthrough a Medical Board. The ossification test ofthe petitioner was conducted in GTB Hospital and a report was filed inthe concerned courton 18.09.2015.

3. Counselfor the petitioner submits thatupon the ossification test being conducted on the petitioner by GTB Hospital, the Medical Board opinedthepresentageoftheconvict,petitionerhereintobebetween25 to 30 years and consequently atthe time ofthe incident he would be roughly IS'A years ofjge?=^^?fg^pf^^^ reporthas been annexed along witlfthe>p3itym ietmed^yuri|elsubmitsthatthe learned AddhiSn^Sessmi^^^^^an o^d^d 20.10.2015, declaredthelejlmnerto o^eincident. Notice wJisl£d inthisM^Sstatus rep'Srt.i|s been filed verifying|ie facts includin||tM1$ that an ossifica|on test was conducted'p the petitioi^^^&^order dated 2|'.10.2015, the petitionerwbdec^^^^,^^,/ _ _ Mr.Chaudhary^ea^I'dQ^elfor^j)etitmnjr^bmitsthat m view order date/1 20? petitioner Mr.Chaudhar^ftf^^'tojmsdforj^etit^^^r^^^ ofthefactthatthei^tio^||e6nj^^?;a-ftjuvenile,heshould "s/ be released forthwith. 6, Wehave heardthelearned counselforthe parties.

7. In this case,by ajudgmentdated 12.04.2010the petitioner herein was convicted under Section 302/34 of the Indian Penal Code. The judgmentofthe Trial Courtattained finality when the appealfiled by the petitioner herein was dismissed by an order dated 11.03.2011. Subsequently, in the year 2014 the petitioner filed a W.P.(Crl).1815/2014 raisingthe pleaofjuvenility. A Single Judge of this Court directed a Medical Board to be constituted and an Page2of[5] W.P.(Crl).1072/2016 ossification test was ordered to be conducted on the petitioner with a view to determine his age. The matter was listed before the Additional Sessions Judge where the report was submitted. On 20.10.2015, Sh. Sanjay Sharma, Additional Sessions Judge, North-East District, Karkardooma Courts,Delhi,based on the ossification test,held that at the time of the incident the petitioner was a minor, wherein the following order was passed: "Arguments heard. The incidenttook place on 02.05.2003. m On the application ofconvict, vide which he had sought a benefit on the ground that he was^juyenile at the time of incident,an enquiry was got conducted by'tbis Court. During the said enquiry,his ossification test wasgotconductedfrom a Medical.Board. A report from'.the said- boM has been received'^which has been proved by CW-1 Dr.-^ilKohli. The^'Medical report has opined that the present age ofthe convict/applicantto be between25and 30years. Ifan average of the said age, in view ofthe said report is takeq out, the convictshould be aboutIVA years ofage at presentand atthe time ofincident, he should have been about IS'A ydars ofage and thu§,a minor/juvenile. i Already a detailed report hasbeen soughtfrontthe10 who has categorically stated that no school document or any other age proofin respectofthraccusCd/convictcould betraced and it was only thereafter:'tM_the convict was subjected to ^ ossification test which has resulted into the above report. There is no other document on record nor could be traced by the10 despite directions to prove the age ofthe convict atthe time ofincident. In view ofthe aforesaid, it is held that the accused/convict was a minor at the time ofthe incident. Application stands disposed ofaccordingly. A copy ofthis order be given,Dasti to the Ld.Legal Aid Counsel. A copy of this order be also sent to the accused/convict through Jail Superintendentconcerned. File be consigned to the Record Room after completion ot the due formalities." Page3of[5] W.P.(Crl).1072/2016

8. As per Section 9(3) of the Juvenile Justice(Care and Protection of Children)Act,2015 in case the court finds that a person who commits an offence and was a child atthe time ofcommission ofthe offence,the matter is to be referred to the Board for passing appropriate orders and the sentence, if any, passed by the court shall be deemed to have no effect. Section 9(3)ofthe Actreads as under:

11 1 ^ appropriate"ordBrs'andihefeen^ ifariy^^.passed by the court shall be.deemed to hav.em©Mfei^ C % // \ It would bej^sefhl to refer S;eMo®mig)iofthe Act,';wherein it has been held that ifajuvenile found^toffelh/'fonflict with law,tfee Board may P I '^1 V 1/ P direct the fuvenile to be sent-fdjallbfcial home,for suqh period, not \\ A j.__ JL' '18. Orders:^r.e§arding-cfiird»iound-^tdfb^^'in.conflict with law.- (g) diredtahe.dhild45^^n|jt§|a<spec home,for such period,notexceddin^t^4:y_ears|^^^;thliik fit,for providing reformative services iiiclifdin^'education, skill development, counseling, behavior modification therapy, and phychiatric support during the period ofstay in the special home:"

10. In the present case, we are informed that the petitioner has been in incarceration for about 13 years. In view of Section 9(3) of the Act reproduced above, order on sentence passed by the court shall be deemed to have no effect. Further,in terms ofSection 18(g),a child in conflict with law is to be sent to a special home for a period not exceeding three years. However, since the petitioner has been in incarceration for almost 13 years, we see no reason to refer the matter W.P.(Crl).1072/2016 Page4of[5] C back to the Board as no purpose would be achieved atthis stage.

11. Accordingly, the writ petition is allowed. The petitioner shall be released forthwith, unless he is wanted in any other case.

12. A copy ofthe order be sentto the Superintendent Jail concerned.

13. Dasti. G.S.SISTANI,J APRIL 29,2016 pst SEHGAL,J jnVJRT O O o I