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2006 DIGILAW 2290 (MAD)

Mrs. Sundari v. Bullet @ Sunderarajan & Another

2006-09-05

S.ASHOK KUMAR

body2006
Judgment :- This Criminal Revision Case has been filed by the P.W.1/complainant against the acquittal of the accused who was charged with the offence under Sections 450, 376(2)(f) IPC, passed by the Judicial Magistrate, Thirukazhukundram in C.C.No:90 of 2001, dated 9.6.2004. 2. The brief facts of the case for the disposal of this Revision are as follows:- P.W.2 is the victim girl concerned in this case. At the time of occurrence, she was aged about 8 years only. P.W.1 is her sister. P.Ws.3 and 4 are her parents. P.Ws 7 and 8 are neighbours. On 6.12.1999 at 3.00 pm., the accsued went to the house of P.W.2, whose parents have gone to work. After asking P.W.2 as to where her parents are, he kissed the girl and thereafter committed rape. Due to unbearable pain when the girl began to cry he shut her mouth by his hand. Thereafter, she became unconscious. P.W.1, elder sister of P.W.2 who came for a lunch to the house, found the accused lying nakedly, raised an alarm. The accused on seeing her pushed her and ran away. P.W.2 was bleeding. She was taken to a private hospital Doctor for treatment. P.W.10 Doctor gave preliminary treatment and sent the victim P.W.2 for further treatment at Government Hospital. Thereafter PWs 1 and 2 went to Koovathur Police Station and gave Ex.P.1 complaint which was registered in Crime NO.310 of 1999. After investigation, the final report was filed against the accused for the offences under Section 450 and 376(2)(f) IPC. 3. At the time of occurrence the accused was 17 years and therefore he was treated as a juvenile and tried by the learned District Munsif -cum- Judicial Magistrate, Thirukazhukundram. Before the Judicial Magistrate, P.Ws, 1 to 10 were examined and Exzs.P.1 to P.3 and M.Os 1 to 5 were marked. The Investigating Officer and the Police Officer who registered the case were not examined as witnesses. Even the documents like forensic reports were not marked. The Judicial Magistrate came to the conclusion that the offences alleged against the accused are not proved and therefore acquitted him. Aggrieved over the same, the present revision case has been filed. 4. The Investigating Officer and the Police Officer who registered the case were not examined as witnesses. Even the documents like forensic reports were not marked. The Judicial Magistrate came to the conclusion that the offences alleged against the accused are not proved and therefore acquitted him. Aggrieved over the same, the present revision case has been filed. 4. Mr.S.N.Thangaraj, learned counsel appearing for the revision petitioner who is the defacto complainant would contend that the offence under Section 376 IPC is to be tried only by a Sessions Court, but on the ground that the accused is a juvenile, the Judicial Magistrate herself conducted the trial and without even examining the Investigating Officer, she has acquitted the accused and therefore based on that retrial may be ordered. 5. According to the learned counsel, The Juvenile Justice Act 1986 is not applicable to the case of the accused because he was aged 17 years and not below the age of 16 years at the time of occurrence. 6. According to the learned counsel, even the Juvenile Justice (Care and Protection of Children) Act, 2000 is also not applicable because it is applicable only to those cases when the Act came into force, the accused was below 18 years. But at the time of trial of the case, the accused has completed 18 years and therefore the new Act is also not applicable to him. 7. In support of his contention, the learned counsel for the revision petitioner pressed into service the Five Judges Bench judgment of the Hon'ble Supreme Court in Pratap Singh Vs. State of Jharkhand (2005 SCC (Crl) 742), wherein at page 746 it has been held thus:- "The question before the Supreme Court was whether the Juvenile Justice (Care and Protection of Children) Act, 2000 would be applicable tin a case where a proceeding was initiated under the Juvenile Justice Act, 1986 and the same was pending when the 2000 Act came into force on 1.4.2001. The striking distinction between the 1986 Act and the 2000 Act is that under the 1986 Act a juvenile means a male juvenile who has not attained the age of 16 years and a female juvenile who has not attained the age of 18 years. In the 200 Act no distinction has been drawn between the male and female juvenile. The striking distinction between the 1986 Act and the 2000 Act is that under the 1986 Act a juvenile means a male juvenile who has not attained the age of 16 years and a female juvenile who has not attained the age of 18 years. In the 200 Act no distinction has been drawn between the male and female juvenile. The limit of 16 years in the 1986 Act has been raised to 18 years in the 2000 Act. Section 20 of the 2000 Act deals with the special provision in respect of pending cases and begins with a non obstante clause. The sentence "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 came into force" has great significance. The proceedings in respect of a juvenile pending in any court referred to in Section 20 of the Act are relatable to proceedings initiated before the 2000 Act came into force and which are pending when the 2000 Act came into force. The term "any court" would include even ordinary criminal courts. If the person was a "juvenile" under the 1986 Act the proceedings would not be pending in criminal courts. They would be pending in criminal courts only if the boy had crossed 16 years or the girl had crossed 18 years. This shows that Section 20 refers to cases where a person had ceased to be a juvenile under the 1986 Act but had not yet crossed the age of 18 years then the pending case shall continue in that court as if the 2000 Act has 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 shall forward the juvenile to the Board which shall pass orders in respect of that juvenile. Such an interpretation does not offend Article 20(1) of the Constitution and the juvenile is not subjected to any penalty greater than that which might have been inflicted to him under the 1986 Act. Such an interpretation does not offend Article 20(1) of the Constitution and the juvenile is not subjected to any penalty greater than that which might have been inflicted to him under the 1986 Act. Thus, considering the relevant definitions and provisions, it is held that the 2000 Act would be applicable to those cases initiated and pending trial/inquiry for the offences committed under the 1986 Act provided that the person had not completed 18 years of age as on 1.4.2001." 8. The decision of the Hon'ble Supreme Court squarely applies to the facts of this case. At the time of commission of the offence, the accused was not below the age of 16 years, but he was aged 17 years old and therefore the Juvenile Justice Act 1986 is not applicable. At the time of trial he was not below the age of 18 years and therefore The Juvenile Justice (Care and Protection of Children) Act, 2000 is also not applicable to him. Therefore the trial held before the District Munsif-cum-Judicial Magistrate, Thirukazhukundram is not legally sustainable and accordingly, the order acquitting the accused is set aside. 9. In the result, The learned Judicial Magistrate, Thirukazhukundram is directed to take steps to commit the accused to Sessions Court which is having jurisdiction where the Sessions Judge shall try the case and dispose of the case according to law.