JUDGMENT :

Through Video Conferencing

1. Heard learned counsel for the appellant Mr. Hemant Kumar Shikarwar and learned A.P.P. Mr. Satish Prasad.

2. This appellant along with five others stands convicted for the offence punishable under Section 364A read with Section 34 of the I.P.C. vide impugned judgment dated 29.11.2017 passed in Sessions Trial No.705 of 2014 by the court of learned Additional Judicial Commissioner-XII, Ranchi and all the convicts have been sentenced to undergo life imprisonment with a fine of Rs.15,000/- each and a default sentence each vide impugned order of sentence dated 04.12.2017.

3. Earlier the prayer for suspension of sentence of this appellant was rejected vide order dated 27th April 2021 passed by a Coordinate Bench of this Court after receipt of the LCR. Through I.A. No.7269/2019 the appellant took a plea of juvenility on the date of the occurrence. Vide order dated 23rd November 2020 the Juvenile Justice Board, Ranchi was directed to enquire into the claim of juvenility of the appellant in accordance with law. The Principal Magistrate, Juvenile Justice Board after inquiry has submitted a report which is at Flag-Z bearing letter no.317 dated 16th April 2021. After due inquiry as per the Juvenile Justice Act, 2015 and hearing the parties, the Juvenile Justice Board has passed an order on 12th April 2021 holding the appellant as juvenile on the date of occurrence i.e. 4th August 2014. He was found to be aged 17 years which is below 18 years as on 4th August 2014. The age determination has been made by the Medical Board by ossification test as per which appellant was found to be around 24-28 years on the date of examination i.e. 25th March 2021. The opinion of the Medical Board was obtained since the claim of the appellant of juvenility based upon the first attended school register, was not found to be correct on inquiry since the appellant had never taken admission in the said Rajkiya Madhya School, Hathini, Rohtas as per the admission register of the school verified by the Principal of the said school. In terms of Section 94 of the Juvenile Justice Act, 2015, the Juvenile Justice Board asked for ossification test of the appellant by a Medical Board for determining his age. The report of the Medical Board therefore has formed the basis for determination of his age as 17 years on the date of occurrence i.e. 4th August 2014 taking his age as 24 years by giving the benefit of doubt in favour of the accused and considering the lower side of the age without giving the benefit of margin of one year to him. Based on the declaration of juvenility of the appellant by the Juvenile Justice Board, Ranchi, learned counsel for the appellant Mr. Shikarwar has prayed that the appellant who has suffered sentence since the date of his conviction i.e. 29th November 2017 i.e. about 4 months less than 4 years, has already undergone the maximum sentence which could have been imposed upon the juvenile under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 i.e. three years. As such, the appellant may be set free though the conviction cannot be disturbed at this stage without hearing the appeal on merits. Learned counsel for the appellant submits that in terms of Section 15(1)(g) of the Juvenile Justice (Care and Protection of Children) Act, 2000, as amended by the Act of 2006, the maximum period for which the juvenile can be ordered to remain in Special Home is 3 years. Learned counsel for the appellant has further referred to Rule 15 Clause 13 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. It is submitted that since the claim of juvenility can be raised before any court at any stage including appeal or revision in terms of Section 7A of the Act of 2000, the declaration of the appellant as a juvenile at this stage should entitle him for being set free as he has remained in custody for more than 3 years by now i.e. the maximum period for which a juvenile can be kept in