JUDGMENT
D.K. Jain, J.
1. This appeal is directed against the judgment and order of the learned Additional Sessions Judge, Delhi in Sessions Case No.18/98, arising out of FIR No.395/97. The appellant, namely, Mahavir @ Veer, questions his conviction for the offence punishable under Sections 363/376/302 and 201 of the Indian Penal Code, 1860 (for short ‘the IPC’), he has been sentenced under Section 363 IPC to undergo rigorous imprisonment for five years and to pay a fine of Rs.500/- with default stipulation of rigorous imprisonment of one month. He has further been sentenced under Section 376 IPC to undergo rigorous imprisonment for life and to pay a fine of Rs.500/- with default stipulation of rigorous imprisonment of one month. He has also been sentenced under Section 302 to undergo rigorous imprisonment for life and to pay a fine of Rs.1000/- with default stipulation of rigorous imprisonment of two months. He has also been sentenced under Section 201 IPC to undergo rigorous imprisonment for five years and to pay fine of Rs.500/- with default stipulation of rigorous imprisonment of one month.
2. Since learned counsel for the appellant has submitted before us that he is not assailing the conviction of the appellant per se and is confining his challenge to the order of sentence, we deem it unnecessary to narrate the facts.
3.The order of sentence is challenged on the legal ground that since on the date of occurrence, the appellant was a “child” within the meaning of the definition of the expression under Section 2(d) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short ‘the Act’), he could not be sentenced under the normal law. It is asserted that his case had to be dealt with under the Act. In support of his stand that on the date of occurrence i.e. 5/6 September 1997 the appellant was an f the appellant is 13 December 1982. Placing strong reliance on the decision of the Supreme Court in Bhola Bhagat Vs. State of Bihar 1998 Crl.L.J. 390, learned counsel has contended that the question whether the appellant was a child or not at the tie of the occurrence can be examined even at this juncture.
4.In order to ascertain the age of the appellant at the relevant time, the State was directed to verify the genuineness of the documents placed on record on behalf of the appellant. As per the verification report dated 19 March 2004 filed by SHO, P.S. T imarpur, Delhi, the documents filed by the appellant have been found to be genuine and it has been confirmed that the date of birth of the appellant is 13 December 1982.
5. In view of the verification report it stands proved that on the date of occurrence the appellant had not completed 16 years of age and as such he was a “child” within the meaning of Section 2(d) of the Act and should have been dealt with under the Act. But unfortunately he has been convicted and sentenced as above.
6. Thus, having satisfied ourselves that the appellant was a “child” within the meaning of the Act as on the date of occurrence, the question for consideration is as to how his case is to be dealt with at this juncture.
7. A similar issue had come up for consideration of the Apex Court in Bhoop Ram Vs. State of UP . Their Lordships of the Supreme Court, upon consideration of the material placed before them, opined that the appellant could not have completed 16 years of age on the date when the offence was committed and, therefore, he was a “child” within the meaning of Section 2(4) of the U.P. Children Act, 1951. Relying on an earlier decision of the Supreme Court in Jayendra Vs. State of UP , where again an accused had been wrongly sentenced to imprisonment, instead of being treated as a “child” and sent to approved school, the Court held that the best course to be followed under the circumstances was to sustain the conviction; quash the sentence imposed on the appellant and release the convict forthwith.
8. In the instant case, as noted supra, the correctness of the age as given in the documentary evidence placed on record is not questioned by the State. Therefore, being a “child” on the date of occurrence, the appellant cannot be denied the benefit of the Act. Consequently, following the course adopted by the Apex Court in the cases of Bhola Bhagat and Bhoop Ram (supra), while sustaining the conviction of the appellant on all the charges, we quash the sentences awarded to him. Since the appellant has already undergone more than six years of sentence, we direct that he shall be set free forthwith.
9. Before parting with the case, as observed by the Apex Court in Bhola Bhagat’s case (supra), we direct that whenever a plea is raised before the trial court on behalf of an accused that he is a “child” within the meaning of the Act, it would be obligatory for the Court, in case it entertains any doubt about the age as claimed by the accused, to itself hold an inquiry for determination of the age of the accused by directing the parties to lead evidence in that regard and record a finding regarding the age, one way or the other.
In view of the fact that the appeal has been disposed in the above terms, the applications are rendered in fructuous and are accordingly disposed of.