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2010 DIGILAW 2027 (PNJ)

Raphik @ Ashok v. State Of Haryana

2010-07-14

JITENDRA CHAUHAN

body2010
Judgment Jitendra Chauhan, J. 1. This appeal has been filed against the judgment/order dated 16/17.2.2000 whereby the learned Additional Sessions Judge, Bhiwani, convicted the appellant under Sections 363 and 376 of the Indian Penal Code for having committed brutal rape upon a minor girl Deepika, aged about 8-1/2 years. The appellant was sentenced to undergo rigorous imprisonment for a period of four years and also to pay a fine of Rs. 4,000/- for the offence punishable under Section 363 of the Indian Penal Code and in default of payment of fine, the appellant was ordered to further undergo rigorous imprisonment for six months. The appellant was also sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 5,000/- for the offence punishable under Section 376 of the Indian Penal Code and in default thereof, to further undergo rigorous imprisonment for one year. Both the sentences were ordered to run concurrently. 2. The case of the prosecution is unfolded by the statement of complainant Smt. Sarla Devi, mother of the prosecutrix. The complainant stated that she has three daughters, namely, Deepika, Mohini and Saloni, aged 8-1/2 years, 6- 1/2 years and 5 years respectively. On 2.6.1998, at about 1.15 p.m., her daughters had gone to shop to purchase toffee, but after five minutes, her daughters Mohini and Saloni were seen coming back and when she enquired from them about Deepika, they told that one boy had taken her somewhere on the pretext to purchase the toffee. She further stated that on her complaint, a case was registered under Section 363/366 of the Indian Penal Code and the girl was recovered on the same day. During investigation, prosecutrix Deepika was got medico-legally examined and Section 376 of the Indian Penal Code was also added. The accused-appellant was arrested on 2.9.1998 and the challan was presented. 3. The accused-appellant was charge-sheeted under Sections 363/376 of the Indian Penal Code, to which he pleaded not guilty and claimed trial. 4. The prosecution to prove its case examined Asha Pahuja, Principal, Bhiwani Public School, Bhiwani who proved the birth certificate, Exhibit PA, as per school record, as PW1; Dr. 3. The accused-appellant was charge-sheeted under Sections 363/376 of the Indian Penal Code, to which he pleaded not guilty and claimed trial. 4. The prosecution to prove its case examined Asha Pahuja, Principal, Bhiwani Public School, Bhiwani who proved the birth certificate, Exhibit PA, as per school record, as PW1; Dr. Meena Barwar, who medicolegally examined the prosecutrix Deepika, as PW2, Subh Karan, Statistical Assistant, Registration and Birth, Municipal Committee, Bhiwani, as PW3, Constable Vir Shakti Singh, who prepared site plan, Exhibit PD, as PW4, Constable Wazir Singh as PW5, Head Constable Rajbir as PW6, Constable Babu Lal as PW7, SI Deep Chand as PW8, Dr. JS Mehra, who medico-legally examined the accused-appellant, as PW9, Ravinder Kumar as PW10, Proxecutrix Deepika as PW11, Kumar Mohini, sister of Deepika, as PW12, complainant Sarla Devi, mother of the prosecutrix, as PW13, Ms. Meenakshi Girdhar, Chief Judicial Magistrate, Bhiwani, who recorded the statement of accused-appellant Rafiz @ Ashok wherein he refused to join the test identification parade, as PW14, ASI Vijay Kumar, who partly investigated the case, as PW14 and SI/SHO Subhash Chander as PW16. 5. Vide order dated 24.9.2004, this Court in Crl. Misc. No. 37868 of 2004, suspended the sentence of the accused-appellant. 6. I have heard the learned counsel for the parties and perused the record. 7. The prosecutrix was aged 8-1/2 years, her date of birth being 8.10.1989 as per her birth certificate, Exhibit PA. The prosecutrix came into the witness box as PW11. She deposed in very unequal terms that she was raped. The prosecutrix was examined by Dr.Meena Barwar, who opined that it was clear-cut case of having sexual intercourse. 8. PW13 Sarla Devi, mother of the prosecutrix, re-iterated her statement which she earlier made to the police. The ocular account gets corroborated from the medical evidence. 9. As per report, Exhibit PK, it has come out that the appellant was juvenile at the time of occurrence. Date of birth of the appellant was 20.2.1981 (Annexure A1). 10. The Honble Supreme court in Satish alias Dhann v. State of M.P., 2009(4) R.A.J. 685 : 2009(3) RCR (Criminal) 891, has laid down the law as under : "3. It is to be noted that prior to the date of occurrence the Madhya Pradesh Children Act, 1928 (in short the "Children Act") was in force. 10. The Honble Supreme court in Satish alias Dhann v. State of M.P., 2009(4) R.A.J. 685 : 2009(3) RCR (Criminal) 891, has laid down the law as under : "3. It is to be noted that prior to the date of occurrence the Madhya Pradesh Children Act, 1928 (in short the "Children Act") was in force. The Juvenile Justice Act, 1986 (in short "1986 Act") was in operation on the date of occurrence. Subsequently, the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as "2000 Act") has been enacted. Under Section 2(h) of the 1986 Act, a juvenile is one who is below the age of 16 years. Under the 2000 Act under Section 2(k), a juvenile or child means a person who has not completed 18 years of age. The fact that on the date in question, i.e. on the date of occurrence and the date of production before the Court the appellant had not completed 18 years of age stands fully established on record. Section 16 of the 2000 Act provides that no juvenile shall be sentenced to death or imprisonment for life or committed to prison in default of payment of fine or in default of furnishing security. Section 20 provides for special provisions in respect of pending cases. The 2000 Act came into force on 1.4.2001. In Bhola Bhagat v. State of Bihar, 1998 (1) RCR (Criminal) 21: (1997 (8) SC 720) this Court after referring to the decision in Gopinath Gosh v. State of West Bengal, 1984(1) RCR (Criminal) 444 : (1984 Supp. SCC 228) and Bhoop Ram v. State of U.P., 1989 (1) RCR (Criminal) 573: (1989 (3) SCC 1) held that an accused who was juvenile cannot be denied the benefit of provisions of 2000 Act. The course this Court adopted in Gopinaths and Bhola Bhagats cases (supra) was to sustain the conviction, but at the same time modify the sentence awarded to the convict. At this distant point of time to refer the appellant to the Juvenile Board would not be proper. Therefore, while sustaining the conviction for the offence for which he has been found guilty, the sentence awarded is restricted to the period already undergone. The appellant be released from custody forthwith unless required to be in custody in connection with any other case." 11. Therefore, while sustaining the conviction for the offence for which he has been found guilty, the sentence awarded is restricted to the period already undergone. The appellant be released from custody forthwith unless required to be in custody in connection with any other case." 11. Since it is evident that the appellant was a juvenile at the time of the commission of offence, as such, in my considered view, it would be in the interest of justice to commute the sentence of the appellant. Accordingly, the sentence of the appellant is ordered to be commuted to the extent already undergone. However, conviction shall remain intact. 12. With the above modification in the order of quantum of sentence, the present appeal stands dismissed.