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Rishi Kapoor Alias Rishi vs State on 12 December, 2018

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 25th October, 2018
Pronounced on: 12th December, 2018
+ CRL.A. 793/2000

RISHI KAPOOR ALIAS RISHI ….. Appellant
Through: Mr. Jabbar Hussain, Advocate

Versus

STATE ….. Respondent
Through: Mr. Kewal Singh Ahuja, APP

CORAM:
HON’BLE MR. JUSTICE R.K.GAUBA

JUDGMENT

1. The appellant was tried in the court of the Sessions (in Sessions
case 53/2000) on the charge for the offence under Section 376 of the
Indian Penal Code, 1860 (IPC), the gravamen thereof being that on
14.03.1994, he with the assistance of co-accused Tinka had committed
rape by engaging the prosecutrix, a girl aged 11 years to forcible
sexual intercourse in Golta Park, Subzi Mandi area. By judgment
dated 27.11.2000, he was held guilty, as charged, on the basis of
evidence that had been led by the prosecution, it including the
evidence of the prosecutrix (PW-2) and her mother (PW-3) besides the
medico legal record including MLC (Ex. PW14/A) prepared by Dr.
H.K. Arora and gynae report (Ex. PW14/B) prepared by Dr. Sagarika
Sarkar, each of whom had examined the prosecutrix as medical
officers working at that point of time in Hindu Rao Hospital. By

Crl.A 793/2000 Page 1 of 8
subsequent order dated 01.12.2000, the trial judge awarded rigorous
imprisonment for three years with fine of Rs.2500/- as the punishment
with further direction that, in the event of default in payment of fine,
he would undergo further simple imprisonment for a period of six
months.

2. The appeal against the above mentioned judgment of conviction
and order on sentence came up before this court on 19.12.2000.
Taking note of the fact that the learned trial judge had suspended the
sentence under Section 389 Cr. PC, a learned single Judge of this
court, by his order dated 19.12.2000, enlarged the appellant on bail
pending hearing on the appeal. The appeal has come up for hearing
almost 18 years after it having been admitted.

3. The learned counsel for the appellant made a feeble attempt to
argue that the accusations against him should not be believed on the
basis of testimony of PW-1 or PW-2 for the reason the co-accused
(juvenile) had been acquitted in a separate inquiry by the Juvenile
Justice Board, the evidence of the same set of witnesses having been
disbelieved, reliance being placed on the judgment dated 26.06.2000
of the said forum. At the same time, the learned counsel submitted
that since the evidence on record clearly shows that the appellant was
17 years old, at the time of the commission of the offence, the benefit
of amended law relating to juvenile justice, where-under he would
now be treated as a juvenile, he being a person below 18 years, should
be accorded in the matter of consequences, placing reliance on the
view taken by the Supreme Court in Abdul Razzaq Vs. State of U.P.,
(2015) 15 SCC 637.

Crl.A 793/2000 Page 2 of 8

4. Having heard the learned counsel on both sides and having
perused the trial court record, this court finds no merit in the first
above noted contention. The failure of the prosecution case against
the juvenile is no reason why the evidence led by the prosecution in
the trial before the court of Sessions should be disbelieved. This case
has to be decided on the merits of the evidence led before it.

5. The evidence of PW-2 (the prosecutrix) about she having been
forcibly taken from public way by the appellant and she being
subjected to forcible sexual intercourse has been duly corroborated by
the medical record. As per the MLC (Ex. PW14/A), the prosecutrix
then a girl aged 14-16 years was found on 15.03.1994 with signs of
penetrative sexual assault, her hymen having been recently torn. It
may be noted that her radiological age was opined to be 14-16 years,
as per the report (Ex. PW9/A) of Dr. C.P. Sharma. But, nothing turns
on this in as much as the suggestion given by the appellant to the
prosecutrix during her cross-examination to the effect she had been
visiting him earlier also was denied. The above said suggestion infact
implied that the sexual intercourse was consensual. There is no reason
why this plea should be accepted in the face of categorical statement
of the prosecutrix that she was forced into the act. The evidence of the
prosecutrix is duly corroborated by the word of her mother (PW-3)
who upon learning about the incident had immediately taken the
matter to the police.

6. Thus, while affirming the finding of guilty and endorsing the
conclusion that the appellant was liable to be convicted on the charge
under Section 376 IPC, the other plea having a bearing on the

Crl.A 793/2000 Page 3 of 8
consequences to follow has to be considered.

7. The evidence presented before the trial court included the
radiological opinion (Ex.PW13/C) that the appellant was 17 years old
on the date of the commission of the offence. This fact was accepted
by the trial court and has been noted particularly in the order of
sentence passed on 01.12.2000.

8. The offence which is the subject matter of the present case was
committed on 14.03.1994. At that point of time, Juvenile Justice Act,
1986 governed the field. The Juvenile Justice (Care and Protection of
Children), Act 2000 came to be enacted and brought into force with
effect from 28.02.2001. The said law was subsequently amended at
least twice and has since been replaced by the Juvenile Justice (Care
and Protection of Children) Act, 2015. Be that as it may, immediately
after the appeal at hand had been presented, the Act of 2000 had come
to be enforced. In terms of the amended law as introduced in February
2001, the expression “juvenile” would mean a person who had not
completed eighteen years of age and the expression “juvenile in
conflict with law” would similarly mean a juvenile who is alleged to
have committed an offence and had not completed eighteen years of
age as on the date of commission of such offence. By virtue of Section
7-A, which was inserted in the Act of 2000, by amendment introduced
with effect from 22.08.2006, the claim of juvenility could be raised
before any court for benefit of the amended law to be taken any time,
there being inclusion of a special provision to take care of pending
cases, including at the stage of appeal (Section 20).

9. In Abdul Razzaq (supra), the petitioner had been found guilty of

Crl.A 793/2000 Page 4 of 8
the offences under Section 302 IPC and sentenced to life
imprisonment by the court of Sessions. The conviction and sentence
was confirmed by the High Court in appeal and the special leave
petition, followed by a review petition, was dismissed by the Supreme
Court, the last order having been rendered on 20.07.2010. The claim
of the said person being a juvenile on the date of commission of the
offence, upon inquiry, was found to be correct.

10. Against the above said backdrop, the Supreme Court noted the
ruling in an earlier decision reported as Jitendra Singh alias Babboo
Singh and Anr. vs. State of Uttar Pradesh, (2013) 11 SCC 193 laying
down as under :-

“80. The settled legal position, therefore, is that in all
such cases where the accused was above 16 years but
below 18 years of age on the date of occurrence, the
proceedings pending in the court concerned will
continue and be taken to their logical end except that the
court upon finding the juvenile guilty would not pass an
order of sentence against him. Instead he shall be
referred to the Board for appropriate orders under the
2000 Act. Applying that proposition to the case at hand
the trial court and the High Court could and indeed
were legally required to record a finding as to the guilt
or otherwise of the appellant. All that the courts could
not have done was to pass an order of sentence, for
which purpose, they ought to have referred the case to
the Juvenile Justice Board.

81. The matter can be examined from another angle.
Section 7-A(2) of the Act prescribes the procedure to be
followed when a claim of juvenility is made before any
court. Section 7-A(2) is as under:

Crl.A 793/2000 Page 5 of 8

“7-A.Procedure to be followed when claim
of juvenility is raised before any court.–
(1)***
(2) If the court finds a person to be a
juvenile on the date of commission of the
offence under sub-section (1), it shall
forward the juvenile to the Board for
passing appropriate order, and the sentence
if any, passed by a court shall be deemed to
have no effect.”

82. A careful reading of the above would show that
although a claim of juvenility can be raised by a person
at any stage and before any court, upon such court
finding the person to be a juvenile on the date of the
commission of the offence, it has to forward the juvenile
to the Board for passing appropriate orders and the
sentence, if any, passed shall be deemed to have (sic no)
effect. There is no provision suggesting, leave alone
making it obligatory for the court before whom the
claim for juvenility is made, to set aside the conviction
of the juvenile on the ground that on the date of
commission of the offence he was a juvenile, and hence
not triable by an ordinary criminal court. Applying the
maxim expressio unius est exclusio alterius, it would be
reasonable to hold that the law insofar as it requires a
reference to be made to the Board excludes by necessary
implication any intention on the part of the legislature
requiring the courts to set aside the conviction recorded
by the lower court. Parliament, it appears, was content
with setting aside the sentence of imprisonment awarded
to the juvenile and making of a reference to the Board
without specifically or by implication requiring the
court concerned to alter or set aside the conviction. That
perhaps is the reason why this Court has in several
decisions simply set aside the sentence awarded to the
juvenile without interfering with the conviction recorded

Crl.A 793/2000 Page 6 of 8
by the court concerned and thereby complied with the
mandate of Section 7-A(2) of the Act.

11. It was also noted that in Union of India Vs. Ex-GNR Ajeet
Singh, (2013) 4 SCC 186 had held that :-

19. The provisions of the JJ Act have been interpreted
by this Court time and again, and it has been clearly
explained that raising the age of “juvenile” to 18 years
from 16 years would apply retrospectively. It is also
clear that the plea of juvenility can be raised at any
time, even after the relevant judgment/order has
attained finality and even if no such plea had been
raised earlier. Furthermore, it is the date of the
commission of the offence, and not the date of taking
cognizance or of framing of charges or of the
conviction, that is to be taken into consideration.
Moreover, where the plea of juvenility has not been
raised at the initial stage of trial and has been taken
only on the appellate stage, this Court has consistently
maintained the conviction, but has set aside the
sentence.

12. Following the said rulings, in case of Abdul Razzaq (supra)
while leaving the conviction undisturbed, the sentence awarded
against him was set aside. On being asked, the learned Additional
Public Prosecutor submitted that he had nothing to say in the face of
the ruling in Abdul Razzaq (supra).

13. The facts and circumstances being similar to the case of Abdul
Razzaq (supra), the same dispensation is followed in the present case.
The benefit of amended benevolent law on juvenility has to be
accorded. Thus, while maintaining the conviction, the sentence of the

Crl.A 793/2000 Page 7 of 8
appellant is set aside.

14. The appeal is disposed of in above terms.

(R.K. GAUBA)
JUDGE
DECEMBER 12, 2018
yg

Crl.A 793/2000 Page 8 of 8

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