JUDGMENT - PARKAR S.S., J.:---Four accused were prosecuted one of whom was juvenile for offence of murder under section 302 of I.P.C. Three of them were convicted by the Sessions Court by the judgment and order dated 9th January, 2002 and death penalty was imposed on them. The accused filed appeal against the order of conviction and sentence recorded against them in this Court. As the death penalty was imposed on the accused persons, reference was made to this Court by the Sessions Court for confirmation of the death sentence. When the matter in the Confirmation Case reached for hearing before the Bench of this Court to which one of us (Parkar, J.) was party, plea was raised on behalf of accused No. 4 that he was juvenile at the time of commission of offence which took place on 6th August, 1997. By the order dated 4th March, 2003 this Court had remanded the case of Santoshkumar Chaudhari, original accused No. 4, to the Addl. Chief Metropolitan Magistrate, 40th Court. Girgaum, Mumbai for holding enquiry in respect of his age and to send the report to this Court with his finding about the age of accused Santoshkumar Chaudhari. By the said order both the sides were allowed to lead evidence with regard to the age of the said accused. On behalf of the accused evidence of Dr. Patil, who had examined the said accused on 19th August, 1997 was led. The said doctor had examined him at the instance of police and had issued certificate that the said accused was between the ages of 16 and 17 years, on the basis of certain tests including ossification test carried out by him. The evidence of Senior P.I. Balasaheb Patil, who was the Investigating Officer, was also led before the Magistrate. 2. The learned Magistrate gave his finding that the accused was juvenile at the time of commission of the offence and set his report dated 29th March, 2003 to this Court. The said report was challenged on behalf of the prosecution in this Court by filing affidavit. The matter was heard by the Division Bench of this Court with regard to the acceptance of the report of the Magistrate about the age of the accused. The said report was challenged on behalf of the prosecution in this Court by filing affidavit. The matter was heard by the Division Bench of this Court with regard to the acceptance of the report of the Magistrate about the age of the accused. The finding given by the Magistrate in his report was that on the date of the offence, accused-Satishkumar was between 14 to 15 years of age and, therefore, juvenile. The Division Bench of this Court after considering the report and the submissions made on behalf of both the sides and considering the judgments of the Supreme Court, by order dated 18th November, 2003 rejected the application made on behalf of the prosecution to give finding contrary to the one arrived at by the Addl. Chief Metropolitan Magistrate by his report of 29th March, 2003 and accepted the report. However, in the penultimate paragraph of the order the Bench had left the question whether the juvenility of the accused has to be decided with reference to the date of commission of offence or date of appearance before the competent authority to be decided by the Court hearing the Confirmation Case and the appeal filed by the accused. Since the limited question was kept open, we heard both the sides today before the Confirmation Case began for hearing. 3. On behalf of the accused reliance was placed on the judgment of the Supreme Court in the case of (Umesh Chandra v. State of Rajasthan)1, reported in 1982 S.C.C.(Cri.) 396 in which while considering the provisions of the old Act of 1986 it was held that the juvenility of the accused has to be considered with reference to the date of offence. So far as the prosecution is concerned, the reliance is placed on the decision of the Supreme Court in the case of (Arnit Das v. State of Bihar)2, reported in 2000 S.C.C.(Cri.) 962 in which it was observed that the juvenility of the accused has to be considered with reference to the date when he is available for administration of justice and justice delivery system. So far as this case is concerned, the date of occurrence is 6th August, 1997 and the accused was arrested on 9th August, 1997 and, therefore, it would not make much difference between the date of occurrence and the date when he was available for administration of justice. So far as this case is concerned, the date of occurrence is 6th August, 1997 and the accused was arrested on 9th August, 1997 and, therefore, it would not make much difference between the date of occurrence and the date when he was available for administration of justice. However, it would be pertinent to point out that the judgment of the two Judge Bench of the Supreme Court in Arnit Das case referred to above was subsequently sought to be reviewed and, therefore the matter was referred to the Constitution Bench in the case of (Arnit Das v. State of Bihar)3, reported in 2001 S.C.C.(Cri.) 1393. The case was referred to the Constitution Bench on the ground that the two Judge Bench deciding the case of Arnit Das v. State of Bihar had not considered or overlooked the earlier view of the three Judge Bench in the case of Umesh Chandra v. State of Rajasthan reported in 1982 S.C.C.(Cri.) 396 wherein it had been held that the crucial date in such cases is the date on which offence was committed and not when the accused first appears in the Court in enquiry proceedings. While dismissing the review petition on the ground that issue referred to the Constitution Bench did not require consideration by the Constitution Bench, it was pointed out in paragraph 5 of the order by the Supreme Court that in Arnit Dass case there was finding recorded in the enquiry conducted under section 32 of the 1986 Act that the accused petitioner was not a juvenile on the date of the offence and the said finding had been confirmed right upto the Supreme Court and, therefore it was of no consequence whether the crucial date for the purpose of 1986 Act is the date of commission of the offence or the date when the accused appears in the Court in enquiry proceedings. 4. Mr. Pasbola also placed reliance on the judgment of the Constitution Bench of the Supreme Court in the case of (Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangha and others)4, reported in 2001(3) Bom.C.R. (S.C.)326 holding that the decision of the larger Bench is binding. Reliance was also placed by Mr. 4. Mr. Pasbola also placed reliance on the judgment of the Constitution Bench of the Supreme Court in the case of (Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangha and others)4, reported in 2001(3) Bom.C.R. (S.C.)326 holding that the decision of the larger Bench is binding. Reliance was also placed by Mr. Pasbola on the decision of the three Judge Bench of the Supreme Court in the case of (Pradeep Kumar v. State of U.P.)5, reported in A.I.R. 1994 S.C. 104 in which while considering the applicability of the provisions of the Juvenile Justice Act the Supreme Court had considered the age of the accused on the date of the occurrence. In that case it was held that the accused had not completed 16th years of age on the date of occurrence and, therefore he should have been dealt with under the provisions on the U.P. Children Act instead of being sentenced to life imprisonment of conviction under section 302 read with section 34 of I.P.C. 5. In view of the above legal position, we are bound by the view taken by the two three Judge Benches of the Supreme Court that the date of occurrence is the relevant date for the purpose of applicability of the provisions of the Juvenile Justice Act, 1986. 6. Since the accused Santoshkumar Chandhari was juvenile at the time of occurrence of the offence in this case, the death penalty imposed on him is liable to be quashed and set aside. In the case of (Gopinath Ghosh v. State of West Bengal)6, reported in 1984 S.C.C.(Cri.) 478 the conviction of the accused for offence under section 302 of I.P.C. and sentence of imprisonment for life imposed by the Additional Sessions Judge and confirmed by the High Court was set aside and the case was remitted to the learned Magistrate for disposal according to law i.e. as per the provisions of the Juvenile Justice Act when the accused was found to be juvenile. That was a case where the question about the juvenility of the accused was raised for the first time in the Supreme Court. That was a case where the question about the juvenility of the accused was raised for the first time in the Supreme Court. It was held in that case that the accused being found to be juvenile on the date of occurrence of the offence, the entire trial of the accused was without jurisdiction and was vitiated and, therefore the conviction of the accused for offence under section 302 of I.P.C. and sentence of imprisonment for life imposed by the trial Court on him and confirmed by the High Court were unsustainable and had to be set aside. In the case of (Bhola Bhagat v. State of Bihar)7, reported in 1998 S.C.C.(Cri.) 125 the Supreme Court after considering the earlier judgments of that Court in the case of Gopinath Ghosh and other cases quashed the sentence awarded to the accused sustaining the order of conviction as the accused was below the age of 18 years on the date of occurrence as per the new Act. 7. Mr. Pasbola did not seek quashing of the order of conviction recorded against the appellant Santoshkumar Chaudhari but only sought quashing of the sentence imposed on him though appeal is filed against the order of conviction as well as sentence recorded against the accused. 8. Consequently we intend to sustain the conviction of the original accused No. 4-Santoshkumar @ Ajay Makkhan Chaudhari for different offences and quash the sentences awarded to him on all the counts. Since the said accused No. 4 is now aged more than 18 years there is no question of sending him for being dealt with under the provisions of the Juvenile Justice Act as held by the three Judge Bench of the Supreme Court in the case of Pradeep Kumar v. State of U.P., reported in A.I.R. 1994 S.C. 104. 9. In the result, we partly allow the appeal filed by original accused No. 4-Santoshkumar @ Ajay Makkhan Chaudhari and while sustaining his conviction, we quash the sentences awarded to him on all the counts and reject the reference made by the Additional Sessions Judge, Greater Bombay in Confirmation Case No. 3 of 2002 in Sessions Case No. 91 of 1998 against the said original accused No. 4 Santoshkumar @ Ajay Makkhan Chaudhari. The said original accused No. 4 Santoshkumar @ Ajay Makkhan Chaudhari is directed to be released forthwith, unless required in any other case. The said original accused No. 4 Santoshkumar @ Ajay Makkhan Chaudhari is directed to be released forthwith, unless required in any other case. The appeal and the Confirmation Case as against the other accused shall be placed for hearing before this Court on 29th January, 2004 and they shall be produced in this Court on that day. Appeal partly allowed. -----