BADAR DURREZ AHMED

(1) This is an application under Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as Rs.the said Act'). The prayer of the appellant is that he be declared as a juvenile within the meaning of Section 2(k) of the said Act and, consequently, that he be treated as a Rs.juvenile in conflict with law' as defined in Section 2(l) of the said Act. It has also been prayed that consequent upon such declaration, the appellant, who has been in custody since 11.02.2007, be released in view of the provisions of the said Act, whereby a juvenile cannot be detained for a period in excess of three years.

(2) The present appeal arises out of the impugned judgment dated 21.03.2009 passed by the learned Additional Sessions Judge, New Delhi in Sessions Case No. 45/2007 arising out of FIR No. 82/2007 registered at Police Station R. K. Puram under Sections 302/363/376/201 IPC. The date of the incident in This case was 06.02.2007. By virtue of the impugned judgment, the appellant has been convicted under Sections 302/363/376/201 IPC and by a separate order on the point of sentence dated 21.03.2009 the appellant was sentenced to imprisonment for life in respect of the offence punishable under Section 302 IPC. A fine of Rs. 5,000/- was also imposed and in default of payment of the said fine, he was required to undergo two years imprisonment. He was also sentenced to rigorous imprisonment for three years in respect of the offence punishable under Section 363 IPC and a fine of Rs. 2,000/- was also imposed on him. In default of payment of which, the appellant was to undergo six months imprisonment. For the offence punishable under Section 376 IPC, the appellant was also awarded a sentence of life imprisonment with a fine of Rs. 5,000/- in default of which he was to undergo two years imprisonment. As regards the offence punishable under Section 201 IPC, the sentence awarded to the appellant was of seven years imprisonment with a fine of Rs. 2,000/- and in default whereof, he was required to undergo six months imprisonment.

In the present appeal, the appellant had moved an application (Crl. M. B. 1372/2009), seeking suspension of sentence. The said application came to be heard by a Division Bench of This Court on 06.05.2010, wherein, it was urged on behalf of the appellant that he was a juvenile at the time of the incident. However, This plea of the appellant was rejected and having regard to the other facts and circumstances of the case also, This Court did not find it to be a fit case for suspension of sentence and consequently dismissed the appellant's application for suspension of sentence. The order passed by This Court on 06.05.2010 is as under :-

" Crl. M. (Bail) No. 1372/2009 in CrI.A.No. 878/2009 Learned counsel for the appellant has, in support of the present application for suspension of sentence, stressed only on one aspect viz. the appellant was juvenile at the time of incident. However, he could not controvert the position that PW9 Dr. Alexander F. Khakha, who had examined the appellant along with other doctors Dr. Ajay Kumar and Dr. Vani, opined that the appellant was more than 18 years and below 19 years of age as on 07.04.2007. This testimony of PW9 Dr. Alexander F. Khakha has been accepted by the learned Trial Court, on the basis of which, finding is arrived at that the appellant was major and not juvenile. Further, having regard to the facts of This case, we do not find it to be a fit case for the suspension of sentence. Application is dismissed."

Upon reading the said order, it is clear that PW9 Dr Alexander F. Khakha, who had examined the appellant along with other doctors, namely, Dr Ajay Kumar and Dr Vani, had opined that the appellant was 18-19 years and below 19 years of age as on 07.04.2007. It was pointed out by the court that the testimony of PW9 Dr Alexander F. Khakha had been accepted by the trial court on the basis of which a finding had been arrived