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2003 DIGILAW 1348 (PNJ)

Chhinda v. State of Punjab

2003-09-24

S.S.GREWAL

body2003
JUDGMENT S.S. Grewal, J. - This appeal is directed against the judgment of conviction and order of sentence dated 5.1.1993 passed by learned Additional Sessions Judge, Ferozepur in Sessions Case No. 2 of 1993 vide which the accused- appellant was sentenced to undergo RI for a period of ten years and to pay a fine of Rs. 2000/- and in default of payment of fine to further undergo RI for six months in case FIR No. 15 dated 10.3.1990. 2. The prosecution story is that the house of the accused and the house of Balwinder Kaur mother of the prosecutrix Sukhwant Kaur alias Sukhwinder Kaur ajoin with each other. At about 4 PM on 9.3.1990 Sukhwinder Kaur was playing in the street whereas, her mother Balwinder Kaur was working in the house. The husband of Balwinder Kaur namely Madan Lal had gone to work at the brick kiln. The accused came to the street where the prosecutrix was playing and lifted her and took her to his house. Balwinder Kaur heard the shrieks of her daughter after about five minutes and she went to the house of the accused. The accused was committing rape with Sukhwinder Kaur by inserting his penis into her vagina and the vagina of the prosecutrix was bleeding profusely. Sukhwinder Kaur was carrying. On seeing Balwinder Kaur the accused managed to escape by running. The husband of Balwinder Kaur came to the house after he came to know about the incident. Balwinder Kaur narrated the incident to her husband and they took the prosecutrix to Civil Hospital, Ferozepur for treatment. The prosecutrix was medico-legally examined at about 9 PM on the day of occurrence and Dr. Renu Singla, who medico-legally examined the prosecutrix has opined that hymen was torn. There was tear measuring 1 cm x 0.5 cm on the anterior and posterior vaginal walls. The underwear of the prosecutrix was blood stained. The doctor further opined that fresh bleeding was present and the probable duration of the injuries was about six hours. Two vaginal swabs were taken and were sent in a sealed parcel to the Chemical Examiner, Patiala for confirmation of the presence of spermatozoa. The underwear of the prosecutrix was also made into a parcel and was sealed by Dr. Renu Singla. Two vaginal swabs were taken and were sent in a sealed parcel to the Chemical Examiner, Patiala for confirmation of the presence of spermatozoa. The underwear of the prosecutrix was also made into a parcel and was sealed by Dr. Renu Singla. Both the parcels were sent to the Chemical Examiner and the Chemical Examiner vide report Ex.PD confirmed that spermatozoa was detected on exhibit No. I and II namely swabs and kachhi respectively. Thereafter the formal FIR was registered against the appellant. 3. After investigation, challan was present in the Court. The appellant was charged under Section 376 Indian Penal Code to which he pleaded not-guilty and claimed trial. 4. In support of its version, the prosecution examined PW-1 Dr. Renu Singla and PW-2 Balwinder Kaur, mother of the prosecutrix and after tendering certain documents on record, the prosecution closed its evidence. 5. In his statement recorded under Section 313 of the Code of Criminal Procedure, the appellant denied the prosecution version and pleaded false implication on the plea that there was a previous enmity between Aziz, uncle of the accused and husband of Balwinder Kaur, PW. The mother of the accused Jeeja appeared as DW-1 and stated that the age of the accused was 15 years as on 10.12.1992. After tendering the documents including birth certificate (Ex.DB), the accused closed its evidence. 6. I have heard learned counsel for the parties at length and perused the record. 7. Learned counsel for the appellant has argued that the occurrence took place on 10.3.1990. Accused was juvenile at that time. He was granted bail on 22.5.1990 by the trial Court observing that :- "2. Bail of the applicant is sought only on the ground that according to the provisions of the Juvenile Justice Act he cannot be detained and has to be released on bail. No circumstance having been brought to my notice from which it may be inferred that if released on bail the applicant would be in danger of associating with hardened criminals or that it would otherwise be improper to release him on bail, it is directed that Chhinda applicant be admitted to bail on his furnishing personal bond in the sum of Rs. 10,000/- with one surety in the like amount of the satisfaction of the Ilaqa/duty Magistrate." 8. 10,000/- with one surety in the like amount of the satisfaction of the Ilaqa/duty Magistrate." 8. His mother namely Jeeja appeared as DW-1 and deposed that his son was about 10 years of age. His name was Balwinder Singh and was changed to Chhinda after he attained the age of four years. The name of the accused was given to the Chowkidar as Balwinder when his birth was recorded, according to which the date of birth of Balwinder Singh is 17.10.1976 and he was thus minor at the date of occurrence. Learned counsel for the appellant contended that as per the settled law the sentence awarded to the appellant, being a juvenile, may be set-aside. In support of his contention, he has relied on the decision of this Court in the case of Naresh @ Natwar v. State of Haryana, 2003(1) R.C.R. 308 and Umesh Singh and another etc. v. State of Bihar, 2003(3) RCR 14. In the case of Umesh Singh (supra), the Supreme Court has held in para No. 6 as under :- "6. So far as Arvind Singh, appellant in Crl. A. No. 659/99 is concerned, his case stands on a different footing. On the evidence on record, the learned counsel for the appellant was not in a position to point out any infirmity in the conviction recorded by the trial Court as affirmed by the appellate Court. The only contention put forward before the Court is that the appellant is born on 1.1.67 while the date of the incidents is 14.12.1980 and on that date he was hardly 13 years old. We called for report of experts being placed before the Court as to the age of the appellant, Arvind Singh. The report made to the Court clearly indicates that on the date of the incident he may be 13 years old. This fact is also supported by the school certificate as well as matriculation certificate produced before this Court which indicate that his date of birth is 1.1.67. On this basis, the contention put forward before the Court is that although the appellant is aged below 18 years and is a child for the purpose of the Bihar Children Act, 1970 on the date of occurrence, his trial having been conducted along with other accused who are not children is not in accordance with law. On this basis, the contention put forward before the Court is that although the appellant is aged below 18 years and is a child for the purpose of the Bihar Children Act, 1970 on the date of occurrence, his trial having been conducted along with other accused who are not children is not in accordance with law. However, this contention had not been raised either before the trial Court or before the High Court. In such circumstances, this Court in Bhola Bhagat v. State of Bihar, 1997(8) SCC 720, following the earlier decision in Gopinath Ghosh v. State of West Bengal, 1984 Supp. SCC 228 and Bhoop Ram v. State of U.P., 1989(3) SCC 1 and Pradeep Kumar v. State of U.P., 1995 Supp. (4) SCC 419 while sustaining the conviction of the appellant under all the charges held that the sentences awarded to them need to be set aside. In view of the exhaustive discussion of the law on the matter in Bhola Bhagat case (supra), we are obviated of the duty to examine the same but following the same, with respect, we pass similar orders in the present case. Conviction of the appellant, Arvind Singh, is confirmed but the sentence imposed upon him stands set-aside. He is, therefore, set at liberty, if not required in any other case." 9. On the other hand, learned State counsel has argued that though the appellant was a juvenile at the time of occurrence but he has committed rape of a girl of two years. He should not be given any benefit of being juvenile. Otherwise also, the case stands proved on the facts on record. 10. In view of the law laid down by the Supreme Court and this Court in the case of Naresh (supra) and Umesh Singh (supra) the conviction is upheld but the sentence of the accused is set-aside. The appellant is, therefore, set at liberty if not required in any other case. The appeal is disposed of in the above terms. Order accordingly.