The Bombay High Court on Tuesday set aside the death sentence of a boy in the rape and murder case of a ragpicker, declaring him a juvenile at the time of the incident. In 2017, a trial court had convicted two accused, including the juvenile, for raping two ragpickers and killing one in Navi Mumbai. Discharging the juvenile, the HC quashed and set aside the observations of the Thane sessions court that had sentenced him to death.
According to police, the accused, including the juvenile, on the pretext of giving them jobs, took the victims, both ragpickers aged 28 and 19, to Belapur. The accused offered them alcohol and, after they were drunk, raped and assaulted them with hacksaw blade and knife, the police said. Both victims sustained multiple injuries. The 19-year-old managed to escape but fell down below a bridge. She sustained head injuries and became unconscious, while the other victim died on the spot.
At the stage of confirmation of death sentence, an application was filed by the accused stating that on the date of the incident in May 2012, he was 16 years and nine months old and, therefore, a juvenile.
Advocate Ragini Ahuja, representing the accused, argued that the trial court had not recorded any definite finding on the question of the date of birth or then about the juvenility of the accused. Ahuja said that the entry in the school records is not found to be tampered with and the date of birth reported ought to have been accepted.
Ahuja submitted that the opinion expressed by the radiologist of Navi Mumbai Municipal Council Hospital, a few days after the offence, was on the basis of X-ray reports and, therefore, not determinative. She also pointed out that the report of the assistant professor, Department of Forensic Medicine & Toxicology, dated August 1, 2019, which concludes that the accused is more than 25 years as of date, which therefore states that the accused was more than 18 years on the day of the incident, is not a reliable document.
Ahuja told the court that Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, states that the date of the birth certificate from the school needs to be given primacy. “In the absence thereof, birth certificate from the local body can be relied upon. When only these two options are not open, the determination by ossification test or any other medical age determination test can be looked into,” Ahuja argued.
A division bench of Justice B P Dharmadhikari and Justice Sandeep Shinde held that “the medical papers show that on the strength of ossification test or radiological test, the age on the date of offence is shown to be above 18 years. The exact age has not been worked out. If possibility of error on either side is kept in mind, it cannot be said that those medical papers established the age of accused no. 2 to be above 18 years on the said date. It cannot be concluded on the basis of these medical test reports that 29/8/1995 is not the date of birth of accused no. 2.”
It added, “In this situation, we find that the date 29/8/1995 as mentioned in the school records on 27/6/2003 needs to be accepted and acted upon. Accordingly we find accused no. 2 to be a juvenile. With the result, we discharge him… and quash and set aside the findings recorded against him…” However, the court said the death sentence confirmation case shall continue against the other accused.
Additional Public Prosecutor Aruna Pai had argued that the age was determined before commencement of the trial, that is in 2012 itself, and that the determination was not questioned by the accused. Pai further told the court that even on August 1, by applying the ossification test and looking into the other factors, the age has been worked out to be 25 years. It, therefore, follows that in 2012, the applicant was above 18 years.
Pai further said that “in such matters, when there is no other option left, belatedly, defence of juvenility is taken. Such defence should not be entertained”.
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