SMT. V.K. TAHILRAMANI, J.:- Heard both sides.

2. The case of the applicant is that he was juvenile in conflict with law at the time of incident. The incident has taken place on 3/5/2005. The claim of the applicant is that he was 17 years old at the time of incident, hence, he should be given benefit of the Juvenile Justice (Care and Protection of Children) Act, 2000. Pursuant to the stand taken by the applicant, directions were issued to the sessions court, Thane, to allow the parties to adduce evidence and to record findings. The sessions court has inquired into the matter and forwarded the finding that the applicant was not a juvenile at the time of incident and consequently he is not entitled to get benefit of juvenility.

3. The applicant did not file any documentary evidence to support his claim of being 'a juvenile'. Before the sessions court the applicant has examined three witnesses i.e. himself as AW 1, his father Kisan as AW 2 and his mother Vanita as AW 3. The applicant has mentioned in his application that at the time of the incident, he was 17 years old. He is resident of Taklipada, which is a remote tribal area. He has no document of his age proof like school certificate, birth certificate and, therefore, he seeks to undergo medical examination for determination of his age. However, in his evidence, the applicant has admitted that he has studied upto 1st standard. He has further stated that at the time of incident he was 16 years of age. Thus his stand in relation to his age at the time of the incident is also not consistent. In his application he has stated that he was 17 years at the time of the incident, however, in his evidence he has stated that he was 16 years old at the time of the incident.

4. It is further pertinent to note that the father of the applicant has stated that he had admitted the applicant in Zillah Parishad School, Taklipada, Taluka Wada, District Thane. AW 3 Vanita, who is the mother of the applicant has stated that the applicant has studied upto 2nd or 3rd standard. The entry regarding the date of birth of the applicant was taken by the school teacher as stated by the father AW 2 of the applicant.

5. At the time of arrest the applicant gave his name as 'Sandeep Kisan Waghe. However, AW 3 Vanita, who is the mother of the applicant has stated that Sandeep Kisan Diwa and Sandeep Kisan Waghe are the names of one and the same person. Both AW 2 and AW 3 have admitted in their cross-examination that surname of the applicant is actually Diwa.

6. On the other hand the respondent State has examined one witness namely Kamlakar Shivram More (PW 1), who was Headmaster of the Zillah Parishad School, Taklipada, Taluka Wada, District Thane. He has proved the entries in the extract of general register of the said school vide Exh.-13 and school leaving certificate of the applicant vide Exh.-12. The applicant's name is appearing in the said register at serial No. 120 and his date of birth is shown as 5/5/1984. He has proved the entry in the general register extract vide Exh.-13. He has also proved entry in the school leaving certificate issued by him vide Exh.-12. Therefore, it is clear that as per school record the date of birth of the applicant is 5/5/1984. Exh.-12, shows that the applicant left the school from 3rd standard as he was continuously absent from the school. Thus it is clear that on the date of incident the applicant was 20 years 11 month and 29 days.

7. Mr. Sait submitted that the applicant was referred for ossification test to the Medical Board, Civil Hospital, Nasik through the Superintendent of Jail, Nasik Road vide letter dated 5/9/2013. The applicant was then transferred to Medical Board, SBH Government Medical College, Dhule, Forensic Medicine and Toxicology through District Prison, Dhule and the medical board conducted ossification test of the applicant on 18/9/2013. As per Ossification Test Certificate (Exh.-14) the age estimation of the applicant as on 18/9/2013 is about 22+2 year. M