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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.203 OF 2000
Pravin @ Shrikrishna Chandrakant Marathe,
Age 20 years, R/o.Ranbambuli, Tal.Kudal,
District Sindhudurg
(At present lodged at Kolhapur Central Jail) Applicant
versus
The State of Maharashtra Respondent
Mr.A.S.Khandeparkar with Mr.Apoorva A. Khandeparkar and
Mr.Rajdeep D. Gude for applicant.
Ms.R.M.Gadhvi, APP, for Respondent-State.
CORAM : PRAKASH D. NAIK, J.
Date of Reserving the Judgment : 8th February 2018
Date of Pronouncing the Judgment : 4th June 2018
JUDGMENT :
1. The applicant was charged with offences punishable under
Sections 376, 451 and 506 of Indian Penal Code (`IPC’). The
applicant was tried before the Court of Assistant Sessions Judge,
Sindhudurg, at Oros vide Sessions Case No.27 of 1997.
2. The facts of the prosecution case, in brief, are as under :
(a) Kumari Sangita Gunaji Khandare (hereinafter referred to
as the `victim’) is the resident of Ranbambuli-Kavalewadi. She was
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taking education in 7th standard in Primary Marathi School, at
Ranbambuli. The date of birth of the victim is 25 th July 1981. Her
family consists of parents, brother and two sisters. The accused is
also resident of Kavalewadi;
(b) Some time in March-1996, at about 11.00 a.m., the
victim was present in her house. She was alone. Her family
members had gone out to attend their work. The accused came to
the house of the victim and embraced her saying that he loves her
and intends to marry her. He made her fall down and committed
intercourse with the victim. He left the house of victim with a
promise that he would marry the victim and threatened her not to
disclose the incident to anyone else;
(c) After about four to five days of the said incident, when
the victim was alone in the house, the accused again visited the
victim. He forcibly dragged the victim to adjoining room in the
house. He committed intercourse with her. While leaving the house,
he threatened her not to disclose the incident to anyone else or else
she will be killed;
(d) Thereafter the accused visited the house of the victim on
several occasions but the other family members were present in the
house and therefore, he could not commit any such act but kept on
promising that he will marry the victim and told her not to tell the
incidents to anyone else;
(e) The victim was pregnant for about seven months and
her stomach was enlarged. So her parents and sisters made inquiries
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with her in that regard, but due to fear, she did not disclose anything
to them. The mother of victim took her to doctor, who opined on
examination that she was pregnant for about seven months.
Thereafter on inquiry by parents, the victim told them that she was
pregnant from accused. The father of victim secured presence of
some persons from locality and he informed them that the accused is
responsible for pregnancy of the victim. All of them went to the
house of accused. Before them, the accused admitted that he had
sexual intercourse with the victim. All of them asked the accused to
perform marriage with the victim, but the accused and his father
declined to do so. On the next day of Ganesh Chaturthi festival, the
father of victim called a meeting at his house and even at that time,
the accused refused to perform marriage with the victim. On 19 th
September 1996, information was received that the accused was
about to abscond from village and thereafter the father of victim with
the help of villagers took the accused to police station;
(f) On 19th September 1996, the victim lodged first
information report about the incident. On the basis of first
information report, offence came to be registered against the accused
under Sections 376, 451 and 506 of IPC. Mr.Panchal, Police Sub
Inspector of Oros Police Station took over the charge of investigation
of the case. On 20 th September 1996, a panchanama of scene of
offence was drawn. The complainant was referred to Civil Hospital,
Sawantwadi. Dr.Marathe and Dr.Tidke both examined the
complainant and found that she was pregnant and issued requisite
medical certificate. The complainant-victim was admitted to the
hospital, where she gave birth to a male child on 23 rd October 1996.
On 20th September 1996, the accused was arrested;
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(g) During the course of investigation statements of
witnesses were recorded. The documents like C.A. certificates and
the certificate issued by the Headmaster, Primary Marathi School,
Ranbambuli, were collected. The charge sheet was filed in the Court
of Judicial Magistrate, First Class, Kudal. Since offence u/s 376 of
IPC was exclusively triable by the Court of Sessions, the case was
committed to the Sessions Court, at Sindhudurg, at Oros.
3. The applicant was tried for the said offences before the Court
of Assistant Sessions Judge, Sindhudurg. The prosecution has relied
upon the oral testimony of PW-1 Sangita Khandare, PW-2 Suresh
Dabholkar (panch), PW-3 Balkrishna Sawant, PW-4 Dr.Marathe
(Medical Officer, Civil Hospital, Sawantwadi), PW-5 Hanumant
Sawant (Headmaster, Marathi Primary School, Ranbambuli), PW-6
Dr.Tidke (Medical Cottage Hospital, Sawantwadi), PW-7 Dr.Joshi
(Rural Medical Hospital, Kudal) and PW-8 PSI Panchal (Investigating
Officer). The prosecution relied upon the first information report
(Exhibit-16), Panchanama of scene of offence (Exhibit-18), School
Leaving Certificate (Exhibit-31), Medical Certificate of victim
(Exhibit-37), Medical certificate of accused (Exhibit-42),
Panchanama of arrest of the accused (Exhibit-44), CA certificates of
victim and accused (Exhibits-45 and 46) and medical certificate of
accused (Exhibit-49).
4. The learned Assistant Sessions Judge by judgment and order
dated 6th March 1998 convicted the applicant-accused for the offence
punishable under Sections 376 and 451 of Indian Penal Code. He
was sentenced to suffer rigorous imprisonment for seven years and to
pay fine of Rs.3,000/- and in default, to suffer rigorous
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imprisonment for four months for conviction u/s 376 of IPC and he
was sentenced to suffer rigorous imprisonment for six months and to
pay fine of Rs.500/- and in default, to suffer rigorous imprisonment
for two months for the conviction u/s 451 of IPC. The substantive
sentence on each count were directed to run concurrently. The
applicant-accused was acquitted for the offence u/s 506 of IPC.
5. The applicant-accused preferred an appeal before the Sessions
Judge, Sindhudurg challenging the judgment and order passed by
the Assistant Sessions Judge, Sindhudurg, at Oros convicting him for
the aforesaid offences. The appeal viz Criminal Appeal No.7 of 1998
was heard by learned Sessions Judge and by judgment and order
dated 24th May 2000, the appeal was dismissed.
6. The applicant-accused preferred this revision application
challenging the aforesaid judgments and orders convicting him for
the said offences. The revision application was admitted by this
Court on 14th June 2000 and pending disposal of the revision
application, the applicant was enlarged on bail. During pendency of
this revision application, the applicant preferred Criminal Application
No.577 of 2009 before this Court and submitted that the applicant is
a juvenile and directions were sought to conduct an inquiry to
ascertain the age of the applicant as on the date of occurrence of the
alleged offence and to submit a report to this Court. By order dated
13th November 2009, this Court directed the Assistant Sessions
Judge, Sindhudurg to conduct an inquiry to ascertain the age of the
applicant on the date of commission of offence after verifying the
record of school upon evidence of the Headmaster or any other
school authority and consequently to verify the truth of the contents
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of the certificate and thereafter the learned Assistant Sessions Judge
was required to pass further orders in accordance with Juvenile
Justice (Care and Protection of Children) Act, 2000, as amended in
2006, verifying the age of the applicant as per judgment of Hon’ble
Supreme Court of India in the case of Ravinder Singh Gorkhi Vs.
State of Uttar Pradesh {(2006)5-SCC-584} and Criminal Application
No.577 of 2009 was disposed off.
7. In pursuance to the aforesaid order the learned Assistant
Sessions Judge, Sindhudurg, at Oros conducted the inquiry as per the
directions of this Court. The evidence of the witnesses was recorded
and report was submitted vide order dated 6 th May 2010 stating that
the applicant-accused was a juvenile in conflict with law as he was
less than eighteen years of age during the period of 30 th January
1996 and 10th February 1996, when the offence was committed. The
said report was received by this Court and the same is part of the
record of this proceeding.
8. The learned counsel for applicant-accused submits that the
applicant-accused is entitled for the benefit under the provisions of
Juvenile Justice (Care and Protection of Children) Act, 2000
(hereinafter referred to as `Juvenile Justice Act’ for short). It is
submitted that the inquiry was conducted by the Assistant Sessions
Judge in pursuant to the order of this Court and it is declared that
the applicant was a juvenile in conflict at the time of commission of
offence. Mr.Khandeparkar further submitted that apart from the
applicability of the provisions of Juvenile Justice Act, the applicant is
also entitled for acquittal on the merits of the case, as the
prosecution has failed to establish the alleged offences.
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9. Mr.Khandeparkar made the following submissions on the
merits of the case :
(i) There was delay in lodging the first information report,
which was not explained by the prosecution;
(ii) The explanation put forth by the prosecution witnesses
that there was delay on the ground of false promise of marriage, is
after thought and is motivated since the applicant had refused to
marry the victim;
(iii) The Courts below had committed an error in
appreciating that there was dispute as regards the age and birth date
of the victim girl. There was no cogent evidence of the victim being
minor;
(iv) The Courts have failed to consider that the findings of
the Trial Court was that the victim had consented to the intercourse
and therefore the birth date of the victim was of vital importance and
the evidence on record does not show that she was a minor girl. The
findings are based on presumptions that the prosecutrix was a minor
girl;
(v) The evidence of the author of general register was not
brought before the Court nor any explanation was given as to why
the said evidence was not adduced before the Court. The school
leaving certificate was not admissible in evidence. The evidence on
record was insufficient to prove that the victim was minor.
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10. The learned counsel for applicant-accused placed reliance on
following decisions :
(i) Kaini Rajan Vs. State of Kerala
2013(4)-Mh.L.J. (Cri.) (SC)-482;
(ii) Lotan Budha Chaudhari Vs. The State of Maharashtra
and another – 2017(5)-Mh.L.J. (Cri)-531;
(iii) Gurpreet Singh Vs. State of Punjab
2005(12)-SCC-615;
(iv) The State Vs. Jagtar and others
2015-ALL M.R. (Cri.)-Journal-31
11. Learned APP Ms.Gadhvi submitted that there is sufficient
evidence to convict the applicant-accused for the offences. There is
concurrent findings of two Lower Courts and there is no reason to
interfere in the judgment of Trial Court and the Appellate Court. The
Revisional Court has limited scope and in the absence of any
perversity in the judgments of the Courts below, this Court may not
set aside the said judgments. It is further submitted that the
prosecution has adduced evidence of several witnesses in support of
its case, which could not be discarded by the defence. The evidence
of the victim is corroborated by other witnesses as well as by medical
evidence. The prosecution has established that the accused has
committed the intercourse and has committed the said offence.
There was sufficient evidence before the Trial Court to come to the
conclusion that the victim was minor at the time of alleged incident
and the defence could not discard the evidence of witnesses to dis-
prove the said fact. It is submitted that the consent was immaterial
as the victim was minor at the time of alleged incident. Both the
Courts have considered the aspect of juvenility of the applicant-
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accused and the said claim was rejected by the Courts below and the
applicant-accused is not entitled for the benefit under the provisions
of Juvenile Justice Act. The evidence in the form of school leaving
certificate establishes the date of birth of the victim. She was born
on 25th July 1981 and she delivered child on 23 rd October 1996. The
evidence of victim, the medical officers, the headmaster of the
school, clearly establishes the case against the accused beyond all
reasonable doubt. The delay in lodging the first information report
has been properly explained. There was no reason to disbelieve the
evidence of the victim. It was not necessary to examine the author of
general register. In these circumstances no case is made out to set
aside the impugned judgments and hence the revision application be
dismissed. Learned APP relied upon the decision of Hon’ble Supreme
Court in the case of State of Himachal Pradesh Vs. Sanjay Kumar
@ Sunny reported in (2017)2-SCC-51.
12. Since the applicant-accused has challenged the impugned
judgments of conviction on merits as well as claimed applicability of
the provisions of Juvenile Justice Act, it is trite to examine both the
aspects. As far as merits of the case is concerned, it is a matter of
record that the date of birth of the victim was 25 th July 1981 and she
delivered a child on 23rd October 1996. Whereas, the date of birth of
the applicant-accused is 21st February 1978. The prosecution has
examined several witnesses, as stated above, in support of its case.
The Trial Court has opined that in the instant case the express
consent of the prosecutrix is silent. However, she has impliedly
consented or participated in the sexual intercourse, which has to be
gathered and inferred from the conduct and surrounding
circumstances. According to the victim, some time in the month of
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March-1996, when she was alone at house, the accused abruptly
entered in her house and under the pretext of love and promise of
marriage and intimidation, committed intercourse with her. The
victim did not disclose the incident for a long time until it was found
that she was pregnant. The age of the victim was disputed by
defence, as the prosecution claimed that she was below 16 years of
age, whereas, the defence claimed that her age was more than 16
years on the date of incident. The Trial Court relied upon testimony
of the prosecutrix and school leaving certificate which denote her
date of birth as 25th July 1981. According to prosecutrix, the accused
committed intercourse somewhere in March-1996. PW-4 Dr.Marathe
has deposed that the intercourse with victim might have taken place
in the month of January-1996, whereas, PW-6 Dr.Tidke has deposed
that the intercourse with victim might have taken place by the end of
December-1995 or in the first week of January-1996. The medical
certificate at Exhibit-37 and testimony of PW-6 Dr.Tidke indicate the
age of prosecutrix to be 12 to 13 years as on 20 th September 1996.
The FIR indicates the age of prosecutrix as 15 years as on 19 th
September 1996. The Trial Court has, therefore, observed that the
documentary evidence and medical evidence brought on record
clearly denotes that the age of the prosecutrix was below 16 years.
13. It is pertinent to note that the school leaving certificate was
issued by the Headmaster, Primary Marathi School, Ranbambuli (PW-
5) on the basis of general register entry maintained in the school.
Defence has tried to contend before the Courts below as well as this
Court that the teacher who made the entry in the general register at
Exhibit-33, is not examined by the prosecution and, therefore, the
evidence of PW-5 and the school leaving certificate Exhibit-31, are
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not admissible in evidence. The entry in the general register vide
Exhibit-33 about the date of birth of victim showing the same as 25 th
July1981, was made by the concerned person in discharge of official
duties. Hence, the said document is admissible u/s 35 of Indian
Evidence Act and non-examination of the teacher who made the
entry, cannot be discard the said evidence. It is true that on the point
of age of the victim the medical evidence is not supported by x-rey
plate or ossification test. The defence had submitted that in the
absence of ossification test the age of the victim cannot be held
below 16 years at the relevant time. Apart from medical evidence
there is other reliable documentary evidence and oral evidence of the
victim to establish that at the relevant time she was below 16 years.
In these circumstances the Trial Court has rightly given a finding that
once it is held that the prosecutrix was below 16 years at the relevant
time, then, even though she has impliedly consented for the
intercourse, her consent is immaterial in the light of provisions
incorporated in Section 375 of IPC.
14. Apart from the aforesaid evidence, PW-3 Balkrishna Sawant,
who was ex-Deputy Sarpanch of Village Ranbambuli and respectful
and independent person, has justified that he met the prosecutrix
and she told him that she was pregnant from the accused and
thereafter he met the accused and his father, wherein the accused
had admitted that he has committed the mistake. On the basis of
this evidence, the Trial Court has observed that the statement of the
accused to the said witness is in the nature of extra judicial
confession which corroborates the testimony of prosecutrix. The
medical evidence corroborates the testimony of prosecutrix that she
gave birth to a male child on 23rd October 1996. The Trial Court has
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also observed that the medical evidence with regards to the date of
incident and the version of the prosecutrix in that regards defers,
however, it has to be considered that the victim comes from hamlet
and has has just passed 7th standard and was not expected to
mention the correct month of the incident. The defence had also
contended before the Trial Court that there was no paternity test. It
was submitted that in the absence of such test, there cannot be any
nexus of the accused with the pregnancy of the victim. Dr.Joshi has
examined the accused on 20th September 1996 and issued medical
certificate Exhibit-42 dated 26th September 1996. It is not necessary
to bring on record the evidence of paternity. The testimony of the
victim and other relevant and material evidence is sufficient to
establish that the accused has committed intercourse with the victim
as a result of which she conceived and delivered a child. There is no
reason to disbelieve the version of victim with regards to the
intercourse committed by the accused with her. Although it is
expected that the FIR should be lodged promptly, however, on
account of belated lodging of FIR in the facts and circumstances of
the case, the prosecution case cannot be disbelieved. It is necessary
to note that after the intercourse under the pretext of marriage
assurances and the intimidation, the victim was of tender age who
did not disclose the fact of pregnancy from the accused, which was
detected upon medical examination. It is required to be noted that
in rape cases, there is feeling of reluctance to the police on account
of attitude of the society and in such an eventuality there is any
delay in lodging the complaint, the same is not fatal. Looking to the
circumstances in the present case and the testimony of the victim, it
will have to be held that delay has been properly explained. Merely
because there is delay in lodging the FIR itself, cannot be a ground to
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give benefit to the accused looking to the circumstances brought on
record. The motive for false implication attributed by the defence
cannot be accepted. The prosecution has established its case by
cogent and satisfactory evidence that accused has committed sexual
intercourse with the prosecutrix while she was minor. The accused
had entered into the house of the victim and thereby committed the
criminal trespass. The evidence of the prosecutrix was not shattered
during the cross-examination and she is consistent that the accused
has committed rape of her. PW-3 has deposed that on 12 th
September 1996, during the days of Ganpati festival, he was called
by Gunaji Khandare who told him that his daughter is pregnant from
accused. He was asked to act as a mediator and settle the marriage
between the accused and the prosecutrix. He made inquiries with
both the parties. The accused had admitted his mistake. The cross-
examination of this witness was not fruitful to the defence. There
was nothing to discard his evidence. As far as age of the victim is
concerned, it will have to be noted that the defence has not
specifically claimed that there was an intercourse by the accused
with the prosecutrix with her consent. However, it was challenged
on the ground that prosecutrix was not minor and she was above the
age of 16 years. However, during the course of cross-examination of
the prosecutrix, nothing was suggested that she was consenting party
and therefore, the evidence will have to be appreciated in the light of
the said facts brought on record. On examination of the evidence of
Dr.Tidke and Dr.Marathe, it cannot be said that the victim was more
than 16 years on the date of examination. Although ossification test
is one of the mode to ascertain the age of victim, but the sole
reliance cannot be placed on the ossification test and the other
evidence will have to be taken into consideration. The evidence of
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PW-5 discloses that he was Headmaster in Zilla Parishad Marathi
Primary School, Ranbambuli and he had issued the certificate dated
13th January 1997 in respect of victim on the strength of entry no.67
in general register. The age is mentioned as per the information at
the time of admission of the student in the school. There is no other
evidence or circumstance that prosecutrix was more than 16 years of
age on the date of incident. Taking into consideration all the
circumstances and the evidence on record, there is no substance in
the defence of the accused and it will have to be held that the
prosecution has established its case.
15. Learned counsel for applicant had relied upon the decision of
this Court in case of Lotan Buda Chaudhari (supra). The said
decision was delivered in the facts and circumstances of that case
which differs from the present case. In the said decision it was
observed that the conviction was awarded by the Trial Court solely
on the basis of testimony of the prosecutrix and her evidence was not
worthy of credence and reliable. In the light of the prosecution case
and over all evidence on record, it is unsafe to base the conviction on
the sole testimony of prosecutrix. However, in the present case, as
stated above, the evidence of prosecutrix is not shaky and doubtful.
She is consistent with her version and is supported by other evidence
on record. Further reliance is placed on the decision of Hon’ble
Supreme Court of India in the case of Kaini Rajan (supra). In the
said case the accused was charged u/s 375 of IPC. In the said
decision it was observed that the victim was consenting party. She
was major at the time of alleged incident. It was also observed that
the behaviour of the parents of the prosecutrix was strange. The
evidence of the victim creates doubt in the mind of Court with
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regards to the veracity of her evidence and it is not safe to rely on
uncorroborated version of the victim of rape. The most
distinguishable feature of the said case was that it was undisputed
that the victim was major and her evidence was doubtful and it was
proved that she was consenting party for the alleged incident.
Hence, the said decision is not applicable in the present case.
16. The judgment of Hon’ble Supreme Court relied upon by
learned APP is of relevance. In the said decision in the case of State
of Himachal Pradesh Vs. Sanjay Kumar @ Sunny (supra), it was
observed by the Apex Court that after taking all due precautions
which are necessary, when it is found that the prosecution version is
worth believing, the case is to be dealt with sensitivity that is noted
in such cases. In such cases, one has to take stock of the realities of
life as well. There is a fear of attracting social stigma. The deterring
factor many time prevents the victims or their families to lodge the
complaint as they find that process of criminal justice system is
intimidating. The testimony of the victim in sexual offence is vital
and unless there are compelling reasons which necessitate looking
for corroboration of a statement, the Court should find no difficulty
but act on the testimony of the victim of a sexual assault alone to
convict the accused. The victim of rape is not an accomplice and her
evidence can be acted upon without corroboration.
17. In the circumstances, the accused is not entitled for acquittal.
The concurrent findings of Courts below do not require any
interference as far as merits of the case is concerned and the same is
required to be confirmed.
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18. This takes me to the other important issue involved in this
proceeding with regards to the provisions of Juvenile Justice Act. As
stated above, during pendency of this revision application, this Court
had directed the Trial Court to conduct an inquiry with regards to the
age of the applicant-accused at the time of alleged incident of sexual
intercourse with the victim. The Assistant Sessions Judge,
Sindhudurg, at Oros has conducted the inquiry and has opined by
order dated 6th May 2010 that the applicant-accused was a juvenile
in conflict with law, as he was less than 18 years of age during the
period between 30th January 1996 and 10th February 1996 when the
offence was committed. It is relevant to consider that the applicant
had claimed to be juvenile in conflict at the time of alleged incident
during the trial as well as before the Appellate Court while dealing
with his appeal against the judgment of conviction. The Trial Court
has dealt with the said issue in paragraph 18 of the impugned
judgment. The date of birth of the applicant-accused is 21 st February
1978. The Trial Court has observed that some villagers from
Ranbambuli-Kavalewadi took the applicant-accused to police station
on 19th September 1996. The accused gave a complaint against
some villagers to the police regarding assault against him by them,
which was treated as non-cognizable complaint. In the said
complaint dated 19th September 1996, the accused gave his age as 18
years. The Trial Court, therefore, observed that it was admitted by
the applicant-accused that his age was 18 years and, therefore, the
said fact need not be proved. However, during the arguments, the
accused has pleaded that he is minor. Such plea is uncalled for as he
was major on the relevant date. The Appellate Court has also
rejected the said contention on the ground that the accused has not
produced any documentary evidence regarding his birth date to
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show that he was minor on the date of incident. It was also observed
that in a recent case it is held that if the accused is major on the date
of trial, then, it cannot be said that trial is vitiated.
19. I have perused the report submitted by learned Assistant
Sessions Judge, Sindhudurg with regards to the inquiry conducted by
the said Court in accordance with the directions issued by this Court.
During the said inquiry, at the instance of applicant, evidence of AW-
1 Manderao Pundalik Kumbhar and AW-2 Dipak Anant Patade was
adduced. AW-1 was working as Headmaster at New English School
at Kasal since 21st January 2002. He produced the character
certificate in the name of accused dated 30 th March 2010. The said
character certificate contains the date of birth of the accused. He
deposed that he had written the said date of birth on the basis of
original register kept in New English School in the regular course of
business and the said document is admitted in evidence at Exhibit-
68. He also produced the original register along with xerox copy.
The registration number of the accused in the school was 1843. He
also brought on record the carbon copy of school leaving certificate
of New English School and Junior College, at Kasal. The school
leaving certificate issued to the accused has been given as per entries
at sr.no.1358 of the school register brought by him. The evidence of
the said witness was not challenged by the public prosecutor.
20. AW-2 Dipak Patade is working as Headmaster at Zilla Parishad
School, Ranbambuli since 1978. He deposed that he has given
school leaving certificate of the accused under his signature on the
basis of register kept in the regular course of business in the school.
The said register number of the applicant is 440. He also deposed
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that the contents of the said original certificate are correct as per
original register and it also bears his signature. The date of birth of
the applicant was shown as 21st February 1978.
21. As stated above, during the examination of AW-1 Kumbhar, he
produced the character certificate of the accused and the original
register as well as carbon copy of school leaving certificate. The
Court conducting the inquiry has recorded the said evidence and
since the said witness has deposed that he had written the date of
birth on the basis of original register kept in New English School in
the regular course of business, the said document was admitted in
evidence at Exhibit-68. The entries against the register produced by
the said witness were also admitted in evidence at Exhibit-69. The
advocate for the accused had submitted before the said Court that
the original leaving certificate was lost and therefore secondary
evidence in the form of carbon copy of the leaving certificate book
was read with the permission of Court regarding the said certificate
at sr.no.1358 of the said book and it’s xerox copy was found to be
tallying with the carbon copy. The said documents were admitted in
evidence as Exhibits-78 and 79. The Court has observed in the
report that on perusal of character certificate at Exhibit-68, the
entries in the register on the basis of which the character certificate
was issued at Exhibit-69 so also the carbon copy of the leaving
certificate at serial number 1358 of New English School and Junior
College, Kasal at Exhibit-70 would indicate that the date of birth of
the accused was shown as 21 st February 1978. It was further
observed that the evidence of the said witness was not challenged in
any manner by the prosecution and, therefore, there was no reason
to disbelieve the correctness of the entries kept in the records of New
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English School and Junior College, Kasal in the regular course of
business, which would show that the date of birth of the accused is
21st February 1978. Through the evidence of AW-2 Dipak Patade,
entry 440 with regards to register number of the applicant in the
register on the basis of which the school leaving certificate of the
applicant-accused was issued under the signature, was admitted in
evidence and marked as Exhibit-72 and the xerox copy was marked
as Exhibit-72A. The original leaving certificate was marked as
Exhibit-73. The evidence of the said witness was not challenged by
the prosecution. The Court, therefore, observed that on having a
looking at the said school leaving certificate issued by the witness in
his capacity as Headmaster of primary zilla parishad school, it is
indicated that the date of birth of the applicant-accused is shown as
21st February 1978 and there is no reason to disbelieve the said entry.
22. The Court of inquiry also dealt with the crucial question as to
what was the date of commission of offence. The Trial Court had
observed that the sexual intercourse with the prosecutrix and the
accused took place somewhere during the period from January-1996
and March-1996. PW-4 Dr.Marathe had deposed that the intercourse
with the prosecutrix might have taken place in the month of January-
1996 whereas PW-4 Dr.Tidke has deposed that the intercourse with
the victim had taken place by the end of December-1995 or in the
first week of January-1996. The Court of inquiry had analyzed the
evidence of these witnesses and also the evidence of prosecutrix
Sangita wherein she has stated that she was staying at the reception
centre since 1996 and she had given birth to male child on 29 th
September 1996. The Court took into consideration the evidence of
Dr.Marathe, PW-4, in which he has stated that as per the abdominal
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examination he had noticed that the uterus of the prosecutrix was of
30 weeks size and in the cross-examination he proceeded to state
that according to him, the intercourse with the victim might have
taken place in the month of January-1996. The examination was
carried out by PW-4 on 20 th September 1996. He deposed that he
and Dr.Tidke had examined the prosecutrix on that day and they
were informed by the prosecutrix the history and at that time she
had stated that she had intercourse twice with the accused before
eight months and thereafter her menstruation had stopped. The
Court therefore observed that taking into account the finding of the
above medical examination that on 20 th September 1996 the
prosecutrix was 30 weeks pregnant, that would mean that she might
have conceived about 30 weeks before 20 th September 1996 i.e.
about seven and a half months back. Thus, if on 20 th September
1996 she was 30 weeks pregnant, then, in that event, she would
have conceived on 5th February 1996. It appears that it was further
observed that according to the prosecutrix, she had given birth to the
child on 23rd October 1996 i.e. after eight and a half months of
pregnancy. The Court further observed that according to the
prosecutrix, the accused had forcible intercourse with her twice and
the second intercourse was after gap of about four to five days of the
first intercourse. Thus, it may be possible that she may have had first
intercourse on 5th February 1996 and the second one on 9th or 10th
February 1996 and may have conceived after first intercourse on 5 th
February 1996 itself. It is also probable that she may have had her
first intercourse on 30th or 31st January 1996 and second on 5th
February 1996 and may have conceived after second intercourse i.e.
on 5th February 1996. The Court, therefore, opined that the alleged
offence of forcible intercourse with the prosecutrix may have taken
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place during the period during 30th January 1996 and 10th February
1996. In paragraph 9 of the report it is observed that from the
character certificate Exhibit-68 and the register relating to the said
certificate Exhibit-69, the school leaving certificate at Exhibit-70 of
New English School and Junior College, Kasal and further from the
register relating to school leaving certificate Exhibit-72 and the
original school leaving certificate Exhibit-73 of the Primary School,
Zilla Parishad, Ranbambuli, the date of birth of the applicant-accused
was 21st February 1978. Thus, taking into consideration the above
said date of birth, the applicant-accused would have completed 18
years of age on 20th February 1996. The Court thereafter relied upon
the decision in the case of Ravinder Singh Gorkhi (supra) and ratio
in the case of Pratap Singh Vs. State of Jharkhand and another
(2005)3-SCC-551, it was considered that determination about the
juvenality is required tobe made even if at the relevant time the
juvenile has crossed the age of 18 years. The Court further relied
upon the decision in the case of Birad Mal Singhvi Vs. Anand Purohit
1988-Supp-SCC-604 wherein it was held that an entry relating to
date of birth made in the school register is relevant and admissible
u/s 35 of Evidence Act but the entry regarding age of person in
school register is of not much evidentiary value to prove the age of
person in the absence of material on which the age of recorded.
After analyzing the factual aspects, evidence of the witnesses and
documents and judicial pronouncements referred to above, the Court
of inquiry observed that there is every reason to believe that the
entries of age in the register can be said to have been proved u/s 35
of Evidence Act. In the said way, the secondary evidence in respect
of school leaving certificate has been prepared as per entries at
sr.no.1358 and the original register of school leaving certificate
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which has also not been challenged in the cross-examination by the
prosecution, there is nothing to doubt the genuineness of the said
certificate which has been kept in regular and ordinary course of
business of the school. The Court also exhibited the evidence of AW-
2 relating to entry no.440 in the register (Exhibit-72) and the
original school leaving certificate (Exhibit-73) can be accepted.
There was no challenge to the testimony of the said witness and no
challenge regarding evidence that the register has been maintained
in regular or ordinary course of business and there is every reason to
believe that the date of birth of the accused shown in the certificate
is 21st February 1978 is correct. It was further observed that there is
no room for suspicion on this aspect. Taking into account the
documentary evidence in the nature of character certificate, entry of
the name of the accused in the register maintained by the school and
the school leaving certificate of the said school and further taking
into account the entry in the school register at sr.no.440 and the
school leaving certificate at Exhibit-73, it can be said that the
accused would have completed 18 years of age on 20 th February
1996. The Court further opined that on the basis of material on
record, the offence would have taken place during 30 th January 1996
and 10th February 1996 and, therefore, the age of the accused at the
time of the incident was below 18 years of age. As a result of which
he will be a juvenile in conflict with law within the meaning of
Juvenile Justice Act, 2000 after amendment of the said definition by
Act No.33 of 2006. The Court also considered that the revision
application of the applicant is pending before this Court and
therefore, finding is required to be submitted to this Court and
proceeded to pass order on 6 th May 2010 that the applicant was a
juvenile in conflict with law, as he was less than 18 years of age
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during the period between 30th January 1996 to 10th February 1996
when the offence was committed.
23. As observed by the Court hereinabove, the evidence of AW-1
and AW-2 could not be challenged and discarded by the prosecution.
No other evidence was brought on record at the instance of
prosecution. I do not find any reason to draw any adverse opinion
with regards to the report submitted by learned Assistant Sessions
Judge in pursuance to the order of this Court. Learned APP could
not point out any infirmity in the opinion/findings in the report
submitted by learned Assistant Sessions Judge in this Court. The
learned Judge has taken into consideration all the aspects of the
matter and analyzed the evidence of the witnesses examined before
him, the evidence of the medical officers examined before the Trial
Court, the evidence of prosecutrix and by proper analyses with
cogent reasons has formed an opinion that the applicant is a juvenile
in conflict with law. I do not find any reason to interfere with the
said report.
24. Learned advocate for the applicant had pointed out from the
decision of Hon’ble Supreme Court in the case of Gurpreet Singh Vs.
State of Punjab (supra) that while hearing an appeal preferred by the
appellant before the Supreme Court, a report was called for from the
Trial Court as to whether on the date of occurrence of the incident,
the said appellant was a juvenile within the meaning of Section 2(h)
of the Juvenile Justice Act, 1986. The appellant therein had
challenged the conviction on merits as well as submitted that on the
date of alleged occurrence, he was a juvenile within the meaning of
Section 2(h) of Juvenile Justice Act, 1986 as on that date he had not
attained the age of 16 years. The said point was not raised either
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before the Trial Court or before the High Court. The Supreme Court
observed that it is well settled that in such an eventuality, the Court
should first consider the legality or otherwise of the conviction of the
accused and in case conviction is upheld, a report should be called for
from the Trial Court on the point as to whether the accused was
juvenile on the date of occurrence and upon receipt of the report, if it
is found that the accused was a juvenile on such date and continues to
be so, he shall be sent to juvenile home. But in case it finds that on
the date of occurrence he was juvenile but on the date of Court
passing the final order upon receipt of the report from the Trial Court,
he no longer continues to be a juvenile, the sentence imposed against
him would be liable to be set aside. A reference was made to the
earlier decision of Supreme Court in case of Bhoop Ram Vs. State of
Uttar Pradesh (1989)3-SCC-1, in which case at the time of grant of
special leave to appeal, a report was called for from the Trial Court as
to whether the accused was juvenile or not, which reported that the
accused was not juvenile on the date of occurrence, but the Court
differing with the report came to the conclusion that the accused was
juvenile on the date of offence and he was no longer a juvenile on the
date of judgment of the Court and the sentence awarded against him
was set aside, though conviction was upheld. It is pertinent to note
that in the case of Gurpreet Singh (supra), the Supreme Court had
upheld the conviction of the appellant but called for a report from the
Trial Court relating to his age on the date of occurrence of the offence.
25. In the decision relied upon by learned counsel for applicant
delivered by Delhi High Court in case of State Vs.Jagtar and others
(supra), the Court has dealt with a similar issue with regards to the
plea of juvenility being raised for the first time in the appeal against
conviction qua applicability of the provisions of Juvenile Justice Act,
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2000. It was observed that there is scanty jurisprudence with
regards to the plea of juvenility being raised in criminal appeals
against conviction by the convicts before the High Court, though
several instances of such plea being pressed before Supreme Court
are available. The Court further observed that it is evident that the
prohibition upon the Court trying a juvenile for commission of an
offence is absolute. There is no option but to deal with the juvenile
in accordance with the provisions of Juvenile Justice Act. Failure to
do so would be contrary to the specific statutory provisions and
result in violation of statutory provisions and denial of legal
protection to the juvenile. In the facts of that case, the Court
observed that some of the appellants had undergone the
imprisonment much beyond the maximum period of permissible
detention of three years under the Juvenile Justice Act and it would
be impermissible to deprive them of their liberty after undergoing
confinement beyond a period of three years. The appellants were
above the age of 18 years at the time of passing the order and they
cannot be lodged in the special home.
26. It would be pertinent to note that in the present case, during
the course of arguments before the Trial Court, a plea was raised
although it was not raised during the course of recording the
evidence, that the applicant is a juvenile and be dealt with in
accordance with the provisions of appropriate law. The said plea was
rejected by the Trial Court without holding any inquiry on the basis
of non-cognizable complaint lodged by the applicant wherein he had
stated his age to be of 18 years. The Trial Court did not ascertain the
said fact at the commencement of trial or during the trial or even
when the said plea was raised by the applicant. The said plea was
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also rejected by the Appellate Court on the similar grounds by
reiterating the reasons assigned by the Trial Court. However, before
this Court, on the application of the applicant, a report was called
for from the Trial Court with regards to the juvenility of the
applicant, which is discussed in detail hereinabove. The report
stands in favour of the applicant stating that at the time of
occurrence of the alleged incident, he was below 18 years of age.
27. In the case of Bharat Bhushan Vs. State of Himachal
Pradesh (2013)11-SCC-274, the Supreme Court has considered the
case of a convict who was more than 16 years of age but less than 18
years, on the date of commission of offence. It was held that he was
entitled to the benefit of Juvenile Justice Act, 2000 since on the date
of offence, the appellant was admittedly a juvenile in terms of
Juvenile Justice Act, 2000. It was also noted that his case was
pending in the High Court on date when Juvenile Justice Act, 2000
was enforced. Hence, it was held that the accused was required to
be dealt with u/s 20 which required the High Court to record a
finding about the guilt of the accused and to forward the juvenile to
the juvenile board. It was also observed that reference to juvenile
board at the belated stage is unnecessary. In the said case, the
prosecutrix was aged about 11 years and the accused was between
16 to 18 years at the time of commission of offence. The testimonies
of the prosecutrix and other witnesses corroborated each other and
inspired the evidence. The conviction of the accused was upheld u/s
376 of IPC. The alleged incident had occurred on 22 nd June 1993. It
would be relevant to quote paragraphs 8 and 11 of the said decision
viz. :
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“8. The legal position regarding the entitlement of the
appellant who was more than 16 years but less than 18
years of age as on the date of commission of the offence
on 22-6-1993, is in our view settled by the decision of
this Court in Hari Ram Vs. State of Rajasthan (2009)13-
SCC-211. This Court has in that case traced the history
of the legislation and reviewed the entire case law on the
subject. Relying upon the decision of the Constitution
Bench of this Court in Pratap Singh case (2005)3-SCC-
551, this Court in Hari Ram case reiterated that the
question of juvenility of a person in conflict with law has
to be determined by reference to the date of the incident
and not the date on which cognizance is taken by the
Magistrate. Having said that, this Court held that the
effect of the pronouncement in Pratap Singh case on the
second question viz. Whether the 2000 Act was applicable
in a case where the proceedings were initiated under the
1986 Act and were pending when the 2000 Act came into
force, stood neutralised by the amendments to the
Juvenile Justice (Care and Protection of Children) Act,
2000, by Act 33 of 2006. The amendments made the
provisions of the Act applicable even to juveniles who had
not completed the age of 18 years on the date of
commission of offence said this Court. Speaking for the
Court Altamas Kabir, J. (as His Lordship then was)
observed :
“58. Of the two main questions
decided in Pratap Singh case, one point is
now well established that the juvenility of a
person in conflict with law has to be
reckoned from the date of the incident and
not from the date on which cognizance was
taken by the Magistrate. The effect of the
other part of the decision was, however,
neutralised by virtue of the amendments to
the Juvenile Justice Act, 2000, by Act 33 of
2006, whereunder the provisions of the Act
were also made applicable to juveniles who
had not completed eighteen years of age on
the date of commission of the offence.
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59. The law as now crystalised on a
conjoint reading of Sections 2(i), 2(l), 7-A,
20 and 49 read with Rules 12 and 98, places
beyond all doubt that all persons who were
below the age of 18 years on the date of
commission of the offence even prior to 1-4-
2001, would be treated as juveniles, even if
the claim of juvenility was raised and after
they had attained the age of 18 years on or
before the date of commencement of the Act
and were undergoing sentence upon being
convicted.
68. Accordingly, a juvenile who had
not completed eighteen years on the date of
commission of the offence was also entitled to
the benefits of the Juvenile Justice Act, 2000,
as if the provisions of Section 2(k) had
always been in existence even during the
operation of the 1986 Act.”
11. The question then is whether the High Court could
have at all recorded a conviction against the appellant
who as seen above was a juvenile on the date of the
commission of the offence. The answer to that question,
in our opinion, lies in Section 20 of the 2000 Act which
reads as under :
“20. Special provision in respect of pending
cases :-
Notwithstanding anything contained in
this Act, all proceedings in respect of a juvenile
pending in any Court in any area on the date
on which this Act comes into force in that area,
shall be continued in that Court as if this Act
had not been passed and if the Court finds that
the juvenile has committed an offence, it shall
record such finding and instead of passing any
sentence in respect of the juvenile, forward the
juvenile to the Board which shall pass orders in
respect of that juvenile in accordance with the
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29 of 37 REVN.203.2000on inquiry under this Act that a juvenile has
committed the offence :
Provided that the Board may, for any
adequate and special reason to be mentioned in
the order, review the case and pass appropriate
order in the interest of such juvenile.
Explanation – In all pending cases
including trial, revision, appeal or any other
criminal proceedings in respect of a juvenile in
conflict with law, in any Court, the
determination of juvenility of such a juvenile
shall be in terms of clause (l) of Section 2, even
if the juvenile ceases to be so on or before the
date of commencement of this Act and the
provisions of this Act shall apply as if the said
provisions had been in force, for all purposes
and at all material times, when the alleged
offence was committed.
28. The Court further observed in the case of Bharat Bhushan
(supra) that it is manifest that the proceedings pending against a
juvenile in any Court as on the date 2000 Act came into force, had to
continue as if 2000 Act had not been enacted. More importantly
Section 20 obliges the Court concerned to record a finding whether
the juvenile has committed any offence. If the Court finds the
juvenile guilty, it is required under the above provision to forward
the juvenile to the Board which would then pass an order in
accordance with the provisions of the Act, as if it had been satisfied
on inquiry under the Act, that the juvenile had committed an
offfence. Pertinently, the question on reference of the accused to the
juvenile justice board was under consideration and in that regard it
was observed that such a reference is unnecessary at its distinct point
of time. The appellant in that case was 36 years old man and father
of three children. In the circumstances the Court found that
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reference to the juvenile board at this stage of life would serve no
purpose and the only option available is to direct his release from the
custody.
29. In accordance with the provisions of Juvenile Justice Act,
2000, the juvenile has been defined as a person who has not
completed 18th year of age. The amended definition of `Juvenile in
conflict with law’ which substituted earlier definition vide
amendment of 2006, is juvenile who is alleged to have committed an
offence and has not completed eighteenth year of age as on the date
of commission of such offence. Section 6 of the said Act deals with
the powers of juvenile justice board and Sections 7 and 7-A relates to
procedure to be followed by the Magistrate not empowered under
the Act and the procedure to be followed when claim of juvenility is
raised before any Court. Section 19 relates to removal of
disqualification attached to conviction. In the present case, in the
inquiry, it has been opined that at the time of commission of offence,
the appellant was below 18 years of age. The FIR was lodged on 19 th
September 1996. The appellant was convicted by the Trial Court on
6th March 1998. The appeal preferred by the applicant was
dismissed by the Sessions Judge, Sindhudurg on 24 th May 2000. The
present revision application was preferred in this Court on 17 th June
2000, which was admitted on 14th June 2000. The Juvenile Justice
Act, 2000 received accent of President of India on 30 th December
2000 and the same was published in the Gazette of India on 30 th
December 2000. The Act came into force on 1 st April 2001. The
proceedings challenging the conviction were pending in this Court
when this Act came into force.
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30. In the case of Hari Ram Vs. State of Rajasthan and another
reported in (2009)13-SCC-211, the Court has extensively considered
the provisions of the Juvenile Justice (Care and Protection of
Children) Act, 2000 especially the provisions of Sections 2(k), 2(l),
7A (Explanation) and 49 (as amended by the Act of 2006). The
question which was raised before the Supreme Court was as to
whether a person who was below 18 years of age on the date of
commission of the offence, prior to the commencement of the 2000
Act, was entitled to the benefit under the Act of 2000. The Court
held that though such person was not a “juvenile” under a literal
application of Section 2(h) of the Juvenile Justice Act, 1986 nor a
“juvenile in conflict with law” under Section 2(l), however, in all
cases pending in any Court on the date the Act came into force, the
determination of juvenility shall be in terms of clause (l) of Section 2
by virtue of the explanation to Section 20 of the Act of 2000.
Therefore, a claim of juvenility was tenable even after the accused
had crossed the age of 18 years on or before the commencement of
the JJ Act 2000 or was undergoing a sentence after conviction. The
permissibility of raising the plea for determination of juvenility for
the first time at the appellate stage is, therefore, no more res integra.
31. In Jayendra and another Vs. State of Uttar Pradesh
(1981)4-SCC-149, a question was raised before the Supreme Court
in the context of a plea of juvenility by the appellant Jayendra that
he was about 15 years on the date of the offence and sought benefit
under the Uttar Pradesh Children Act, 1951, Section 29 of this Act
was similar to the provisions of Section 7A of the JJ Act. Section 29
provided that if the child is found to have committed an offence
punishable with imprisonment, the Court may order him to be sent
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to an approved school for a period of stay as will not exceed his
attaining the age of 18 years. Jayendra was 23 years of age on the
date of the report of his juvenility plea and therefore, in view of the
provision of Section 29 of the Uttar Pradesh Children Act, 1951,
could not be sent to an approved school. For this reason, the
Supreme Court upheld the conviction of the appellant of Jayendra
and quashed the sentence imposed upon him and directed that he
shall be released forthwith.
32. In Bhoop Ram Vs. State of Uttar Pradesh (1989)3-SCC-9,
the appellant stood convicted with five others for commission of
offences under Sections 148, 302, 323, 324 read with Section 149 of
the IPC and sentenced to life imprisonment besides concurrent
sentences for lesser terms of imprisonment. Placing reliance on a
school certificate showing his date of birth, the appellant had
claimed that he should have been treated as a child within the
meaning of Section 2(4) of the U.P.Children Act, 1951. The learned
Sessions Judge did not go into the question as to whether the
appellant was below 16 years of age on the date of offence and
proceeded to award the lesser sentence of imprisonment of life
instead of the extreme penalty of death sentence. In the face of his
plea, at the stage of admission of the Special Leave Petition, the
Supreme Court was of the view that the Sessions Judge, Bareilly be
called upon to enquire into the age of the appellant and submit a
report with the option to have the appellant examined by the Chief
Medical Officer of the State. Liberty was given to the parties to
adduce evidence on this aspect. In this case, the Chief Medical
Officer, Bareilly gave a certificate that the appellant appeared to be
30 years of age as on 30th April 1987. The appellant had placed only
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his school certificate before the Sessions Judge to prove that he had
not completed 16 years on 3rd October 1975, the date of commission
of the offence. This certificate was rejected by the learned Sessions
Judge on the ground that it was not unusual that in schools, ages are
understated by one or two years for future benefits.
33. It is noteworthy that in Bhoop Ram Vs. State of U.P. (supra),
the Supreme Court followed the reasoning of Jayendra and another
Vs. State of U.P. (supra). On the date of consideration of the appeal
by the Supreme Court, the appellant Bhoop Ram was aged more than
28 years of age and there was no question of his being sent to an
approved school in accordance with the provisions of U.P.Children
Act, 1951 and for being detained there. The appellant had crossed
the maximum age of detention at the time of consideration of issue.
34. Therefore, so far as the manner in which the appellant Bhoop
Ram was to be treated as he was more than 28 years of age at the
time of consideration of the case by the Supreme Court is concerned,
the Court adopted the course followed in Jayendra and another Vs.
State of U.P. (supra) and observed that the course which was to be
followed is to sustain the conviction but however, quash the sentence
imposed on the accused. The Court accordingly sustained the
conviction of the appellant under all the charges framed against him
but quashed the sentence awarded to him and directed his release
forthwith. In this regard, the Court had observed as follows :-
“8. Since the appellant is now aged more than 28
years of age, there is no question of the appellant now
being sent to an approved school under the U.P.Children
Act for being detained there. In a somewhat similar
situation, this Court held in Jayendra Vs. State of U.P.
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That where an accused had been wrongly sentenced to
imprisonment instead of being treated as a “child” under
Section 2(4) of the U.P.Children Act and sent to an
approved school and the accused had crossed the
maximum age of detention in an approved school viz. 18
years, the course to be followed is to sustain the
conviction but however quash the sentence imposed on
the accused and direct his release forthwith. Accordingly,
in this case also, we sustain the conviction of the
appellant under all the charges framed against him but
however quash the sentence awarded to him and direct
his release forthwith. The appeal is therefore partly
allowed insofar as the sentence imposed upon the
appellant are quashed.
35. In Dharambir Vs. State (NCT of Delhi) and another
(2010)5-SCC-344, the Court reiterated the well settled principles
that a claim of juvenility would be maintainable and can be raised
before any Court or forum and has to be recognised at any stage
even after disposal of the case. In this case, by the impugned
judgment, the High Court had upheld the conviction of the appellant
for commission of the offences under Sections 302 and 307 read with
Section 34 of the Indian Penal Code, 1860. The appellant had been
sentenced to imprisonment for life under sections 302/34 IPC as well
as fine. Additionally, for commission of offence under Section
307/34 IPC, he stood sentenced to undergo rigorous imprisonment
for a term of seven years and fine. The Supreme Court noted that at
the time of pronouncement, the appellant had undergone an actual
period of sentence of 2 years, 4 months and 4 days and was now
aged about 35 years. The Court was of the view that keeping in
mind the age of the appellant, it may not be conducive to the
environment in the Special Home and to the interest of other
juveniles housed in the Special Home, to refer him to the Board for
passing orders for sending the appellant to Special Home or for
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keeping him at some other place of safety for the remaining period of
less than eight months, the maximum period for which he can now
be kept in either of the two places in accordance with the provisions
of the Juvenile Justice Act, 1986. For these reasons, while sustaining
the conviction of the appellant for the aforestated offences, the
sentence imposed upon him was quashed and he was directed to be
released forthwith.
36. In the present case it can be seen that the plea of juvenility
was raised during the course of argument before the Trial Court as
well as the Appellate Court and then before this Court. It may be
that during commencement of the trial or when the trial was in
progress, the appellant did not raise that plea. However, it was the
duty of the Trial Court to ascertain the said fact before proceeding
with the trial. As far as the issue as to what is the primary duty of
the Trial Court, in this regard, the observations of Supreme Court in
paragraph 13 of the judgment reported at 1984 (Supp) SCC-226
(Gopinath Ghosh Vs. State of West Bengal) made as back as in the
year 1984 deserve to be noticed in extenso and read thus :
” … … Ordinarily this Court would be
reluctant to entertain a contention based on factual
averments raised for the first time before it. However, the
Court is equally reluctant to ignore, overlook or nullify
the beneficial provisions of a very socially progressive
statute by taking shield behind the technicality of the
contention being raised for the first time in this Court. A
way has therefore, tobe found from this situation not
conducive to speedy disposal of cases and yet giving effect
to the letter and the spirit of such socially beneficial
legislation. We are of the opinion that whenever a case is
brought before the Magistrate and the accused appears to
be aged 21 years as below, before proceeding with the
trial or undertaking an inquiry, an inquiry must be made
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36 of 37 REVN.203.2000
about the age of the accused on the date of the
occurrence. This ought to be more so where special acts
dealing with juvenile delinquent are in force. If
necessary, the Magistrate may refer the accused to the
Medical Board or the Civil Surgeon, as the case may be,
for obtaining credit worthy evidence about age. The
Magistrate may as well call upon accused also to lead
evidence about his age. Thereafter, the learned
Magistrate may proceed in accordance with law. This
procedure, if properly followed, would avoid a journey up
to the Apex Court and the return journey to the grass-
root Court. If necessary and found expedient, the High
Court may on its administrative side issue necessary
instructions to cope with the situation herein indicated.
(emphasis by us).
It was also open to the Appellate Court also to direct an inquiry with
regards to the juvenility of the applicant. On the basis of the report
submitted by the Court pursuant to the directions of this Court, it is
crystal clear that the applicant was juvenile at the time of occurrence
of the incident. The report submitted by the Court upon inquiry is
analytical and a conscious effort is made by the Court to consider the
evidence on record and record finding that at the time of occurrence
of the offence, the applicant was below 18 years of age. The said
report deserves to be accepted. In Hari Ram’s case reference is
made to the decision of Supreme Court in Rajinder Chandra Vs. State
of Chhatisgarh (2002)2-SCC-287 wherein it was held that when a
claim of juvenility is raised and on the evidence available two views
are possible, the Court should lean in favour of holding the offender
to be a juvenile in border line cases. In the light of the decisions
referred to hereinabove, more particularly in the Bharat Bhushan
case (supra), the provisions of Juvenile Justice Act, 2000 (as
amended) are applicable to the case of the applicant. It is also
apparent that the appellant has crossed the age of 18 years and in
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37 of 37 REVN.203.2000
the light of the observations in several decisions, the applicant
cannot be referred to the juvenile justice board. Although the
conviction of the applicant is upheld, the sentence imposed upon the
applicant is required to be set aside in accordance with the provisions
of the Juvenile Justice Act and in accordance with the ratio laid
down in the judicial pronouncements referred to hereinabove.
37. In view of above, I pass following order :
ORDER
(i) Criminal Revision Application No.203 of 2000 is partly
allowed;
(ii) The conviction awarded by the Assistant Sessions Judge,
Sindhudurg, at Oros vide judgment and order dated 6 th March 1998
passed in Sessions Case No.27 of 1997 and judgment and order
dated 24th May 2000 passed by the Sessions Judge, Sindhudurg, at
Oros in Criminal Appeal No.7 of 1998, is confirmed, however, the
sentence of imprisonment awarded by the Trial Court and confirmed
by the Appellate Court while convicting the applicant for the offence
u/s 376 of IPC and Section 451 of IPC, is hereby set aside.
(PRAKASH D. NAIK, J.)
MST
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