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2010 DIGILAW 487 (JK)

Mool Raj v. State

2010-09-04

Hasnain Massodi, J.P.Singh

body2010
Per Massodi, J. 1. The complainant on 10.09.2000 lodged a verbal report with Police Station Doda, alleging that on 07.09.2000 at 11 A.M., his daughter -- accompanying the complainant to police station, was over-powered by the appellant in a local field and subjected to rape. The complainant further alleged that people attracted to the scene of occurrence by hue and cry, raised by the victim, found the victim lying in a pool of blood and were informed by her that she was raped by the appellant, hiding in the maize field, when she carried cow-dung to her field. The complainant explained the delay in lodging FIR, stating that the victim because of the criminal assault, was in painful condition and could not move out of her house till 10.09.2000 when she accompanied her father, to the Police Station. 2. The report prompted Police Station, Doda to register case FIR No.115/2000 under section 376 RPC. The investigation was entrusted to Shri Om Parkash, ASI, Police Station, Doda. The Investigating Officer immediately after the investigation was taken over, referred the victim to local hospital for medical examination, seized the stained cloths of the victim, referred the seized cloths to Forensic Science Laboratory (FSL), Jammu for examination and recorded statements of the victim and other witnesses. The Investigating Officer also referred the appellant, arrested soon after the case FIR No. 115/2000 registered, to the doctor so as to find out whether the appellant was physically fit to indulge in sexual intercourse. The reports from the Medical Officer who examined the victim and the appellant were obtained and so was the report from FSL, Jammu. 3. The Investigating Officer on conclusion of the investigation found commission of offence punishable under section 376 RPC prima facie proved against the appellant. The investigation was accordingly concluded as proved and charge sheet presented against the appellant in the competent court on 10.1l.2000. The case, being one exclusively triable by the Court of Sessions, was committed to the Court of Sessions (Additional Sessions Judge, Doda on 24.11.2000. 4. The appellant was formally charged of offence punishable under section 376-RPC. The appellant denied the charge and asked for a regular trial. The prosecution, having regard to stand taken by the appellant, was asked to adduce evidence in support of the charge. 5. 4. The appellant was formally charged of offence punishable under section 376-RPC. The appellant denied the charge and asked for a regular trial. The prosecution, having regard to stand taken by the appellant, was asked to adduce evidence in support of the charge. 5. The prosecution, out of as many as 13 witnesses listed in the charge sheet, examined 8 witnesses including the victim of alleged offence, her father -- the complainant in the case. The prosecution witnesses who stayed away from the witnesses box, included two witnesses cited as witnesses to the occurrence, FSL expert and SHO Police Station. Doda claimed to have recorded his satisfaction regarding the mode and manner of the investigation as also its outcome. 6. The appellant on 14.10.2005 was confronted with the incriminatory material appearing in the prosecution evidence. The appellant denied the occurrence and insisted, that the complainant was in the habit of filing false cases against the inhabitants of the village and that the case against the appellant was also part of such designs of the complainant. The appellant denied to have committed any criminal assault on the victim and pleaded’ that PW Amar. Chand to whom the victim claimed to have disclosed the occurrence and cited as a witness to the occurrence, had not been examined by the prosecution. The appellant insisted that all the witnesses cited as witnesses to the occurrence, in the charge sheet, denied to have seen the occurrence and that the case was nothing but a mischief on part of the complainant. 7. The appellant examined three witnesses in his defence. The witnesses examined by the appellant include Amar Chand, cited as Prosecution witness but given up by the prosecution. 8. Learned Trial Judge on going through the prosecution evidence, the stand taken by the appellant under section 342 Cr PC, the evidence adduced by the appellant in his defence and on evaluating the material on the file, held the prosecution to have proved its case against the appellant beyond reasonable doubt. The Learned Trial Judge, accordingly, vide judgment and order dated 30.8.2008, convicted the appellant of offence punishable under section 376 RPC and thereafter vide order dated 30.8.2008 sentenced the appellant to rigorous imprisonment for life and fine to the tune of Rs. 2000/-. 9. The appellant has come up with an appeal against the judgment and order dated 30.8.2008 against his conviction and sentence. 2000/-. 9. The appellant has come up with an appeal against the judgment and order dated 30.8.2008 against his conviction and sentence. The learned Trial Judge has also in compliance of section 374 Cr. PC, submitted the case file for confirmation of the sentence recorded by the Trial Court. 10. The Criminal Appeal No. 23/2008 and Confirmation No. 9/2008 are taken up together for consideration and this judgment shall govern the fate of criminal appeal as well as the confirmation proceedings. 11. The judgment and order dated 30-8-2008 are assailed on the following grounds: (i) that the Trial Court has not appreciated the evidence in right perspective and has not followed the law applicable to the facts and circumstances of the case; that the Trial Court followed the case law laid down in the context of non-availability of witnesses at the time of occurrence to the present case, unmindful of the fact that eye witnesses including PW Amar Chand were present at the scene of occurrence and it was not a case where sole testimony of the victim was to be relied upon. (ii) that the Trial Court failed to appreciate that the medical evidence did not corroborate the statement of the victim in as much as the doctor claiming to have examined the victim, opined that the alleged offence was likely to have been committed within 24 hours of examination of the victim; whereas it was admitted case of the prosecution that the victim was subjected to medical examination 72 hours after the occurrence. (iii) that the Trial Court did not take notice of the failure of the prosecution to examine important prosecution witnesses including PW Amar Chand, uncle of the victim and also failure of the prosecution to come up with any explanation to justify withholding of PW Amar Chand, PWs Hem Raj and Punu Ram. (iv) That the trial court failed to take note of serious contradictions in the prosecution evidence that rendered the prosecution evidence un-creditworthy. (v) that the Trial Court failed to consider fall out of inordinate delay in lodging the FIR on the veracity of prosecution case; that the occurrence as per prosecution case; took place on 7.9.2000; whereas it was reported to Police Station, Doda on 10-9-2003, leaving scope for improvements, exaggeration and concoction. (v) that the Trial Court failed to consider fall out of inordinate delay in lodging the FIR on the veracity of prosecution case; that the occurrence as per prosecution case; took place on 7.9.2000; whereas it was reported to Police Station, Doda on 10-9-2003, leaving scope for improvements, exaggeration and concoction. (vi) that the Trial Court erroneously admitted into evidence and relied upon the certificates of doctors claimed to have examined the victim and the appellant; that a certificate prepared by the doctor while examining a person, is to be used only to re-fresh the memory and not as substantive piece of evidence as has been done by the Trial Court; that the Trial Court also failed to appreciate that no marks of violence were found by the Medical Officer on the private parts or any other part of the body of the victim. (vii) that the Trial Court awarded disproportionate and harsh sentence to the appellant , least: realizing that the appellant is young boy of 22 years and has whole life ahead of him and that the sentence was likely to spoil the life of the appellant. (viii) that the Trial Court failed in its statutory duty in not giving the appellant the benefit of J&K Juvenile Justice Act, 1997; that the appellant at the time of occurrence was less than 14 years of age and the trial court though under statutory obligation to enquire into the matter as regards age of the appellant, avoided to focus on this aspect of the case and even failed to record age of the appellant while recording the statement of the appellant in reply to the charge and also in statement under section 342 Cr. PC ; that the date of birth of the appellant as per the certificate issued by the Tehsildar, Doda is 25-9-1986 and the appellant thus, was 14 years of age on the date of occurrence and entitled to the benefit available to Juvenile offender under J&K Juvenile Justice Act, 1997. 12. We have gone through the memorandum of appeal as also the judgment and order dated 30-8-2008 of the Trial Court. We have had advantage of having available trial court record for perusal. 13. We have heard the learned counsel for the appellant and leaned AAG at length and given our thoughtful consideration to the arguments advanced at the Bar. 14. We have gone through the memorandum of appeal as also the judgment and order dated 30-8-2008 of the Trial Court. We have had advantage of having available trial court record for perusal. 13. We have heard the learned counsel for the appellant and leaned AAG at length and given our thoughtful consideration to the arguments advanced at the Bar. 14. One would feel tempted to lake up the last ground i.e. the ground regarding juvenility of the appellant on the date of occurrence, for consideration in the first place as the finding returned on the plea is likely to be of vital importance for the fate of the appeal. However, in our opinion, the right course would be to see whether the conviction of the appellant for offence under section 376 RPC recorded by the Trial Court, is sustainable. In the event the conviction of the appellant is not maintained the question of juvenility of the appellant would pale into insignificance. The issue would attract attention only in case the conviction of the appellant is upheld -- the course in tune with the law laid down by the Apex Court on the subject, a detailed reference to which would be made during course of the judgment. 15. In the circumstances, the other grounds pleaded by the appellant deserve to be dealt with before focus is shifted to the last ground. 16. The ground urged that the trial Court mis-appreciated the evidence and misapplied the law, does not find support from the material before the Trial Court and is bereft of any merit. The emphasis laid by the Trial Court on importance of testimony of the victim against the backdrop of settled legal position that the victim in case of sexual assault is not to be taken as accomplice but her testimony deserves same respect as that of injured, must not lead to the inference that the trial Court appreciated the evidence in the present case on the anvil of the law laid clown in the context of absence of any witness to the occurrence. The Trial Court, while seeking guidance from the law laid down in AIR 2006 SC 381 and AIR 1996 SC 1393 , cannot be said to have misapplied the law to the facts of the present case. The Trial Court, while seeking guidance from the law laid down in AIR 2006 SC 381 and AIR 1996 SC 1393 , cannot be said to have misapplied the law to the facts of the present case. The Trial Court, while appreciating the evidence on the file, rightly turned to the law laid down in the aforesaid cases for guidance. 17. The appellant does not find any support from law laid down in Raju and others v. State of Madhya Pradesh, 2008 (15) Scale 375 , heavily relied upon by the learned counsel for the appellant to canvass that the aforementioned legal principle cannot be universally and mechanically applied to the facts of every case of sexual assault. The Supreme Court in the case relied upon by the learned counsel for the appellant reemphasizing duty of the Trial Court in a sexual assault to deal with the evidence with sensitivity, quoted the following passage from State of Punjab v. Gurmit Singh and Ors 1996(2) SCC 384 :- "The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult top place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and the sensitive while dealing with cases involving sexual molestations". 18. The Supreme Court proceeded to extract the following observations made by the Court in Ranjit Hazarika v. State of Assam (1998) 8 SCC 635 :- "The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases d involving sexual molestation , supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal in nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury." So viewed, there is no substance in the appellant’s case that the Trial Court failed to appreciate the evidence or mis-applied the law. 19. The second ground pleaded to question the judgment and order of the Trial Court, is equally specious and deserves to be ignored. The argument that the statement of the victim must be disbelieved as the medical expert has given the time of occurrence 24 hours before the examination and not 72 hours as stated by the victim, is not acceptable. PWs Dr. Rehana Khurshid and Dr. Mehjabeen, who examined the victim at District Hospital, Doda on 10-9-2000, have no where in their examination report/certificate EXPW-D made a mention of the rape having been committed 24 hours before examination of the victim. The probable time gap between the occurrence and the examination given by PW Dr. Rehana Khurshid, is not sufficient to disbelieve the victim as regards the time of occurrence and throw out the prosecution case, on this ground alone PW Rehana Khurshid has stepped in the witness box about year after the witness examined the victim in District Hospital, Doda and in absence of any observation in the medical report EXPW-D, as regards interval between the occurrence and the examination by the witness, the opinion expressed in the Court while rendering testimony about probable time gap, is not to be given much importance. There is no reason for the victim to give an incorrect account as regards time of occurrence and discredit her statement. It needs no emphasis that in case of any contradiction between ocular evidence and expert evidence eyewitness, account is to prevail. 20. The ground that the failure of the prosecution to examine the important witnesses and delay in lodging the FIR, does not inspire any confidence. It needs no emphasis that the prosecution is under no obligation to examine each and every witness listed in the charge sheet. It is for the prosecution to decide on the number of witnesses to be examined in support of the charge. What is important, is not the number of witnesses examined or quantity of evidence but the quality of evidence. The prosecution may not examine one or more witnesses where it is satisfied that it has been able to prove its case beyond reasonable doubt against the accused on the strength of evidence already on the file. The prosecution is also within its right to give up witnesses though listed in the charge sheet but reported to have been won over by the defence. This is exactly what has been stated to the Additional Public Prosecutor in his statement recorded on 19-902001 when the Additional Public Prosecutor decided to give up PWs Punu Ram, Amar Chand and Hem Raj. The apprehension of Additional Public Prosecutor later proved well placed when PW Amar Chand uncle of the victim appeared as defence witness. The witness in his statement recorded on 20.7.2006, has not denied the occurrence but expressed his ignorances regarding the occurrence. Again the delay in lodging FIR, has held by the learned Trial Judge was sufficiently explained by the complainant. 21. The case set up by the appellant that the Trial Court has erroneously admitted EXPD and EXPW-X into evidence, has no legs to stand on. The documents have been duly proved by the author of the documents and there was no legal impediment in the way of trial Court to admit the documents into evidence and place reliance on the documentary evidence while rendering the judgment and order impugned in the criminal appeal. 22. The ground that the trial court downplayed and ignored the contradictions and discrepancies in the prosecution evidence, is equally specious and better to be ignored. 22. The ground that the trial court downplayed and ignored the contradictions and discrepancies in the prosecution evidence, is equally specious and better to be ignored. It has been emphasized time and again that minor discrepancies and contradiction in the prosecution evidence speak of creditworthiness in the evidence and not of any concoction . A witness, while narrating the events that took place sometime before the witness stands in the witness box, is not expected to give parrot like version of the events. The human memory fades and a few discrepancies here and there are bound to creep in. Having said so, close scrutiny of the prosecution evidence does not reveal any serious contradictions in the evidence as is sought to be projected by the learned counsel for the appellant. 23. On a closer look at the judgment and order impugned in the appeal, it transpires that the Trial Court after summarizing the evidence adduced by the prosecution to substantiate the charge against the appellant, the explanation tendered by the appellant to explain incriminatory material appearing in prosecution evidence and the evidence adduced by the appellant in his defence has made threadbare discussion of the material on the file and on objective appraisal of the material on the file held the prosecution to have successfully discharged the burden of proving its case against the appellant beyond even the shadow of reasonable doubt. On going through the judgment and order of the trial Court; it is more than clear that the Trial Court while appreciating the evidence on the file has been alive to the ingredients of the offence under section 375 RPC." The learned Trial Court had before it the statement of the victim of alleged offence -- 10/11 years old girl who, narrated before the Trial Court the event that took place and that tragedy befell on 7.9.2000 at 11 A.M., when the victim had carried cow-dung to her field and that the appellant concealed himself in the maize crops, pounced upon the victim, cut the string of her Salwar and committed sexual assault on her. The statement made by the victim tested at the anvil of cross-examination remained unscathed and un-impeached. The statement of the victim was sufficiently supported, reinforced and corroborated by the statement of PW Kunj Lal, father of the victim and complainant in the case. The statement made by the victim tested at the anvil of cross-examination remained unscathed and un-impeached. The statement of the victim was sufficiently supported, reinforced and corroborated by the statement of PW Kunj Lal, father of the victim and complainant in the case. The other evidence on the file including the statements of PWs Dr. Mahajbeen and Dr. Rehana Khursheed, who examined the victim soon after the alleged occurrence, left no option for the court but to believe testimony of the victim. The version of the prosecution witnesses was further reinforced by documentary evidence. EXPW-I, EXPW-II, EXPW-II-A, EXPW-II-B, EXPW-X, EXPW-D, EXPW 2/3, EXPW-KL, EXPW- OP, EXPW-MA duly proved by the prosecution. 24. From the above discussion, the only irresistible conclusion that emerges is that the Trial Court has rightly held the appellant guilty of offence punishable under section 376 RPC. The conviction of the appellant thus, does not warrant any interference and is to be upheld and maintained. 25. However, this does not end the matter. The appellant, as already pointed out, insists that the appellant was Juvenile within the meaning of J&K Juvenile Justice Act 1997 on the date of occurrence; and that the appellant in terms of the Juvenile Justice Act was not liable to be sentenced and his case ought to have been sent to the Juvenile Justice Court/Board within the meaning of Section 7 of the Act. The plea was admittedly not taken up before the Trial Court. The appellant has nonetheless taken up the plea before this Court. 26. This Court took notice of the plea and vide order dated 16.2.2009 directed Principal, Government Medical College, Jammu, to constitute Medical Board for examination of the appellant. The Board was constituted on 18.2.2009 and it, on the basis of Dental and Radiological examination of the appellant, opined that the appellant was more than 25 years of age on the date of his examination by the Board. The Court, on receipt of the opinion of the Medical Board, decided to go through date of birth certificate placed by the appellant with the memo of appeal. The Certificate recorded date of birth of the appellant as 02.10.1986. On perusal of photocopy of the Chowkidar’s Register, available on the file, it was found to have some overwriting. In order to ascertain correct age of the appellant, the original record was summoned and produced before the court. The Certificate recorded date of birth of the appellant as 02.10.1986. On perusal of photocopy of the Chowkidar’s Register, available on the file, it was found to have some overwriting. In order to ascertain correct age of the appellant, the original record was summoned and produced before the court. The Court found Birth Register not properly maintained and thus not of any help to clarify the position. The Court confronted with the statement of the learned counsel for the appellant that in the given circumstances, the learned counsel would place exclusive reliance on the Medical Report and not the date of birth certificate earlier sought to be pressed into service, left it open for the Court (sic) examine the Birth Certificate so as to arrive at conclusion, whether the document was fabricated. 27. In the above background, the question whether the appellant was juvenile within the meaning of J&K Juvenile Justice Act and thus entitled to benefit/concession available to the juvenile under the Act, is still wide open and calls for an answer. The conceptual framework of criminal liability, with emphasis on mens rea as its basic element has made it necessary for the law makers to make distinction amongst offenders on the basis of mental capacity. Section 82 RPC recognizes the principle that an offender of tender age unaware of the consequences of his act, is not to be visited with any penal consequences for his act which may otherwise constitute an offence. It lays down that nothing is an offence which is done by a child under seven years of age. In other words criminal liability is to (sic) be fastened on a child below seven years of age. 28. It was later realized that even a child more than seven years of age but below 16 years of age could not be expected to have requisite mental capacity to intend or be aware of the results of his/her commission or omission and it was not fair to attribute intention or mens rea to an offender of tender age and that the delinquency of a child was not to be treated at par with that of an adult. Children Act, 1970 was legislative (sic) to treat a child below 16 years of age differently from and not subject to the same treatment as was given to an adult offender. Children Act, 1970 was legislative (sic) to treat a child below 16 years of age differently from and not subject to the same treatment as was given to an adult offender. The Legislature alive to its constitutional obligation under Article 39 clause (f) of the Constitution of India and international treaties and covenants like Conventions on the Rights of the Child of 1989 and United Nations Standard Minimum Rules for the Administration of Juvenile Justice Act 1985 commonly known as "Beijing Rules" replaced the Children Act 1970 with Juvenile Justice Act 1997. 29. Supreme Court in Umesh Chandra v. State of Rajasthan (1982), 2 SCC 202 commented on rationale and logic behind a separate Juvenile Justice Legislation in following words: "Children Act was enacted to protect young children from the consequences of their criminal acts on the footing that their mind at that age could not be said to be mature for imputing mens rea as in the case of adult." 30. Supreme Court again in Hari Ram v. State of Rajasthan, SCC, 2009 (13), 211 referring to the background philosophy of Juvenile Justice Legislation and need to implement the law with the change in mindset laid down:- "2. The said law which was enacted to deal with offences committed by juveniles, in a manner which was meant to be different from the law applicable to adults, is yet to be fully appreciated by those who have been entrusted with the responsibility of enforcing the same, possibly on account of their inability to a system which, while having the trappings of the general criminal law, is, however, different therefrom. 3. The very scheme of the aforesaid Act is rehabilitatory in nature and not adversarial which the courts are generally used to. The implementation of the said law, therefore, requires a complete change in the mindset of those who are vested with the authority of enforcing the same, without which it will be almost impossible to achieve the objects of the Juvenile Justice Act, 2000." The Court further observed:- "The need to treat children differently from adults in relation to commission of offences had been under the consideration of the Central Government ever since India achieved independence. With such object in mind, Parliament enacted the Juvenile Justice Act, 1986, in order to achieve the constitutional goals contemplated in Articles 15(3), 39(c) & (f), 45 and 47 of the Constitution imposing on the State a responsibility of ensuring that all the needs of children are met and that their basic human rights are fully protected." 31. Section 7 of the J&K Juvenile Justice Act 1997 confers exclusive jurisdiction on Juvenile Welfare Board and Juvenile Courts to deal with the proceedings relating to delinquent juvenile. It follows that whenever a charge sheet is presented against delinquent juvenile alleging commission of an offence punishable under any law for the time being in force, the Court before which the charge sheet is presented in terms of section 7 of the Act is to forward the charge sheet to the Juvenile Welfare Board/Juvenile Court so that the case is dealt with by the Board/Court in accordance with the provisions of the Act. Where the Charge sheet implicates non-juvenile or adult person(s) as accused alongside the delinquent juvenile, the Court is to direct segregation of the case pertaining to delinquent juvenile and transmit it to the Board/Court, to be dealt with by such Board or Court in accordance with the Act. The Juvenile Justice Act being essentially a Welfare Legislation, the effort always is to give liberal and purposive interpretation to the provisions of the Act "Statutes’, it has been observed, should be construct not as theorems of Euclid but with some imagination of the purposes which lie behind them. The interpretative effort must be "illumined by the goal" of a Statute. The Supreme Court and the High Courts, conscious of the aims and objectives of the Act, have over the years interpreted the provisions of the Act so as to broaden its scope and make the benefits available under the Act even to a delinquent juvenile, who ceases to be so on the, date the juvenile is produced before the Court, but was juvenile on the date of commission of the offence. 32. The Apex Court in Bhola Bhagat v. State of Bihar (1997) 8, SCC 720, lamenting upon denial of benefit under the Act to the Children by the High Court on the ground of age recorded in statements under section 313 Cr. 32. The Apex Court in Bhola Bhagat v. State of Bihar (1997) 8, SCC 720, lamenting upon denial of benefit under the Act to the Children by the High Court on the ground of age recorded in statements under section 313 Cr. PC, observed : "Technicalities were allowed to defeat the benefits of a socially oriental legislation like the Bihar Children Act, 1982 and the Juvenile Justice Act, 1986." 33. The Constitution Bench of Supreme Court in Pratap Singh v. State of Jharkhand (2005) 3, SCC, 551, while laying emphasis upon the aims and objects of Juvenile Justice Act has held: "We expect the High Courts and subordinate courts to deal with such cases with more sensitivity, as otherwise the object of the Acts would be frustrated and the effort of the legislature to reform the delinquent child and reclaim him as a useful member of the society would be frustrated." 34. Having dealt with the rationale behind Juvenile Justice Legislation, its aims and objects and the principles to be followed while interpreting the provisions of the Juvenile Justice Act, the focus must now shift to the present case. 35. The Trial Court admittedly took no steps to find out whether the appellant was "juvenile" within the meaning of section 2(h) of the Act on the date of commission of offence. Court trial court as well as a committal court is under Constitutional and Statutory obligation to hold an enquiry whether the accused brought before it, appearing to be a juvenile, is a "juvenile" as defined under section 2(h) of the Act and to be dealt with, in accordance with the provisions of the Act. 36. Section 32 of the Act casts a duty on competent authority including Court, before which a person, appearing to be juvenile is brought, to make an inquiry as regards age of person. Section 32 is not limited to a case where a person, who is brought, makes an application claiming therein that such person is a juvenile. The duty under section 32 is on the competent authority/court to inquire into juvenility of the person, if the person appears to be juvenile and not on the juvenile to lay a claim of being juvenile and entitled to be treated as such under the Act. The duty under section 32 is on the competent authority/court to inquire into juvenility of the person, if the person appears to be juvenile and not on the juvenile to lay a claim of being juvenile and entitled to be treated as such under the Act. It follows that Section 32 become operational where the person brought before the competent authority/court appears to be juvenile and the Court has to discharge its duty even where no plea of juvenility is raised. In Bhola Bhagat’s case (supra) it has been observed: "It becomes obligation for the court, in case it entertains any doubt about age as claimed by the accused to hold an inquiry. It is for determination of question of age of the accused or .. an inquiry to be held and seek a report regarding the same, if necessary, by asking the parties to lead evidence in that regard. Keeping in view the beneficial nature of the socially-oriented legislation, it is an obligation of the court where such a plea is raised to examine that plea with care and it cannot fold its hands any without returning a positive finding regarding that plea deny the benefit of the provisions to an accused. The court must hold in inquiry and return a finding regarding age, one way or the other." 37. Such an obligation is to be discharged even where no plea of juvenility is raised but accused appears to be a juvenile. The ignorance on part of the accused that because of his age he has a right to be treated differently as compared to an adult accused, does not free the Court of its constitutional and Statutory duty to make an enquiry into juvenility of the accused. 38. In the present case, the Committal Court and the trial court failed to discharge their duty under the Act, by omitting to make an enquiry regarding the juvenility of the accused and the trial court even went a step further in wrong direction when it failed to record the age of the appellant in his statement recorded in reply to the charge as also statement under section 342 Cr. PC. The appellant has for the first time taken up a plea of his being juvenile at the time of commission of offence, in present appeal, obviously when adequate legal assistance was available to the appellant. 39. PC. The appellant has for the first time taken up a plea of his being juvenile at the time of commission of offence, in present appeal, obviously when adequate legal assistance was available to the appellant. 39. From the perusal of the record, it appears that the appellant as per birth certificate issued by the Tehsildar, was of 14 years of age on the date of commission of the offence. Appellant was referred to the Medical Board and as per the opinion of the Medical Board based on Dental and Radiological Examination, the appellant’s age was 16 years and few months, on the date of commission of the offence. There is thus no major discrepancy between the birth certificate issued by the Tehsildar, Doda and age as per the opinion of the Medical Board. The apprehension regarding interpolation in the Birth Register maintained by the Chowkidar appears to be misplaced. It is settled law that Radiological or Dental examination does not help us to opine on the exact age of a person. There is always variation of 1/2 years on either side regarding the age assessed by the Medical Board on Radiological and Dental examination. In the circumstances, the benefit of such variation must go to the appellant, more so, when the birth certificate issued by the Tehsildar concerned is suggestive of the appellant having been less than 16 years of age at the time of occurrence. 40. In Ram Deo Chauhan v. State of Assam, (2001, Cri.L.J. 2902) where a plea of juvenility of the accused -- convicted, was raised and the plea required determination of the age of accused -- convict, it was observed:- "Ossification test is done for multiple joints. the marginal error according to the authorities on Medical Jurisprudence can be two years either way as the maximum. In this context it is useful to extract the relevant passage from Jhala and Raju’s jurisprudence (6th Edition, page 198) "if ossification test is done for single bone the error may be two years either way but if the test is done for multiple joints with overlapping the age of fusion,. The margin of error may be reduced. Sometimes this margin is reduced to 06 months on either side." 41. The margin of error may be reduced. Sometimes this margin is reduced to 06 months on either side." 41. In Rajnath v. Stale of Assam, 2001, AIR, SCW, 2159, it has been held:- "An X-ray ossification test may provide a surer basis for determining the age of an individual than the opinion of a medical expert but it can by no means be so infallible and accurate a test as to indicate the exact date of birth of the person concerned. Too much of reliance cannot be placed upon text books, on medical jurisprudence and toxicology while deterring the age of an accused. In this vast country with varied latitudes, heights, environment, vegetation and nutrition, the height and weight cannot be expected to be uniform." 42. In Arnit Dass v. State of Bihar (2000) 5, SCC 488, Supreme Court held that while dealing with question of determination of the age of the accused, for the purpose of finding out whether he is a juvenile or not, a hyper technical approach should not be adopted while appreciating evidence adduced on behalf of the accused in support of the plea that he was a juvenile on the said date. If two views may be possible on the said evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. 43. The principle was followed in Rajinder Chandra v. State of Chattisgarh and another, AIR, 2002, SC, 748 and benefit under the Act, extended to the accused, though having regard to the material available to the Court, two views were possible. In Hari Ram (supra). Supreme Court reiterating law laid down in earlier decision on the subject reemphasizing that the object of the Act called for a liberal and purposive construction of provisions of the Act, held:- "Scheme of the Act is to give children, who have, for some reason or the other, gone astray to realize their mistakes, rehabilitate themselves and rebuild their lives and become useful citizens of the Society instead of degenerating into hardened criminals." Reference was also made to law laid down in Rajindra Chandra’s case (supra) and the amendment to Juvenile Justice Act, 2000. 44. It may be pointed out that Juvenile Justice Act of 1986 (Central Act), stands repealed and replaced by Juvenile Justice Act of 2000. 44. It may be pointed out that Juvenile Justice Act of 1986 (Central Act), stands repealed and replaced by Juvenile Justice Act of 2000. In the Act of 2000, the expression "delinquent juvenile" has been replaced by; more pro-juvenile expression, "juvenile in conflict with law". Section 2(k) of Act of 2000 defines juvenile as a person who has not completed eighteenth year of age and "juvenile in conflict with law" as a 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. 45. The Constitution Bench of Supreme Court in Pratap Singh’s case (Supra) made the benefit available under the Act even in pending cases, where though the occurrence took place prior to coming into force of the Act of 2000 but the accused on 01.04.2001 i.e., the date on which the Act came into force had not completed 18 years of age. In view of the law laid down, the benefit under the Act of 2000, was not available to an accused, who though juvenile within meaning of Section 2(k) of the Act of 2000 on the date of occurrence ceased to be juvenile when the Act of 2000 came into force. The Act of 2000 was amended in the year 2000. Section 7A added so that the benefits under the Act of 2000 were made available to the accused, who in terms of Section 2 (k) of the Act of 2000, were juvenile on the date of occurrence. 46. J&K Juvenile Justice Act 1997 is parametria with the Justice Juvenile Act 1986. The State Legislature has yet to come up with the Legislation in tune with Juvenile Justice (Care and Protection of Children) Act, 2000, as amended upto date. A detailed reference to the new Legislative trends is being made only to lay stress on need to go for a liberal and pro-juvenile interpretation of the provisions of J&K Juvenile Justice Act 1997. 47. From the above discussion it emerges that the appellant was juvenile on the date of commission of offence and deserved to be extended benefits available to a delinquent juvenile under the Act. However, this does not end the matter. What is to be, fate of the appeal against the backdrop of finding, returned on juvenility of the appellant remains to be answered. 48. However, this does not end the matter. What is to be, fate of the appeal against the backdrop of finding, returned on juvenility of the appellant remains to be answered. 48. Section 3 J&K Juvenile Justice Act 1997 provides for continuation of enquiry in respect of juvenile who has ceased to be a juvenile. It lays down that where an enquiry has been initiates against a juvenile and during the course of such enquiry the Juvenile ceased to be such, then notwithstanding anything contained in the Juvenile Justice Act or in any other law for the time being in force the enquiry may he continued and orders may be made in respect of such person as if such person has continued to be juvenile. Section 3 thus by legal fiction makes room for continuation of proceedings under the Act, treating a person as juvenile though he has ceased to be juvenile so that the enquiry is taken to its logical end. Section 3, it needs no emphasis, deals with an enquiry initiated under the Juvenile Justice Act and not proceedings beyond scope of the Act like trial or appeal. Section 3 thus is not an answer to the question posed hereinabove inasmuch as the court has before it the appeal preferred by a juvenile, convicted and sentenced by the trial court under the mistaken belief that the appellant was an adult on the date of commission of the offence. 49. Criminal proceedings initiated against a person involve two stages -- determination of guilt and thereafter award of sentence/punishment. J&K Juvenile Justice Act does not prohibit determination of guilt of juvenile. It only provides for a "Special Court" known as Juvenile Court to inquire into a criminal case against the juvenile. The object is to segregate the case of a juvenile from adult accused and insist on a less cumbersome procedure to be followed in such cases. The procedure to be followed by such court in terms of section 39 of the Act is to be procedure laid down for summons cases by Code of Criminal procedure 1989. It is only after the juvenile Court returns a finding of guilt against the juvenile that the Court in terms of section 21 of the Act is to pass any of the orders mentioned in clause (a) to (e) of section 21. It is only after the juvenile Court returns a finding of guilt against the juvenile that the Court in terms of section 21 of the Act is to pass any of the orders mentioned in clause (a) to (e) of section 21. However, what the Act prohibits is sentencing the juvenile to imprisonment by itself as a punishment or in default of payment of fine or in default of security. Section 25 of the Act lays down a juvenile who has committed offence and has been dealt with under the provisions of the Act, shall not suffer disqualification, if any, attached to conviction of offence under such law. In terms of section 7(2) of the Act where the juvenile Court has not been constituted, the powers of the Juvenile Court are to be exercised by District Magistrate or Sub Divisional Magistrate or judicial Magistrate Ist. Class. Thus a court that conducts trials of the non-juvenile/adult co-accused may be the court that conducts proceedings under the Act against delinquent juvenile. Section 26 of the Act has a special provision in respect of pending cases. It provides that the case pending against a juvenile in any court on a date the Act comes into force, shall be continued in that court as if the Act had not been passed and if the court finds the juvenile has committed offence, the court shall record finding, but for passing any sentence in respect of juvenile forward the juvenile to the Juvenile Court for orders. What is sought to be emphasized is that the court does not lack inherent power to try and return a finding on guilt of an accused later found to be juvenile and that the focus of the Juvenile Justice Act is on sentence and not on determination of guilt. The Act is curative and not punitive in character. It does visualize a juvenile being found guilty convicted of an offence though such conviction in terms of section 25 of the Act is not to result in any disqualification. The Act however in clear terms prohibits the award of sentence or even imprisonment for non-payment of fine in case of a juvenile. 50. It does visualize a juvenile being found guilty convicted of an offence though such conviction in terms of section 25 of the Act is not to result in any disqualification. The Act however in clear terms prohibits the award of sentence or even imprisonment for non-payment of fine in case of a juvenile. 50. So viewed, if accused, convicted of an offence by the trial court, is found by the appellate court to have been juvenile on the date of commission of the offence, the finding as regards determination of guilt may not be disturbed, though sentence awarded being in conflict with mandate of the Act is to be set aside. Any other course would prolong, compound and aggravate the agony of the accused later found to have been a juvenile on the date of commission of the offence. To illustrate if an accused continues to be a juvenile on the date of decision in the appeal, and his conviction is set aside, the delinquent juvenile after facing trial, shall have to again go through the ordeal before the Juvenile Court, and face inquiry to be conducted as per Summons Case procedure. In case the accused is no more juvenile, the Juvenile Court would lack jurisdiction to deal with the matter, inasmuch as Section 3 of the Act cannot be pressed into service to treat the adult accused as "juvenile" by legal fiction available in case of inquiry under the Act. In both the eventualities the victim of the alleged offence and the prosecution witnesses shall be put to equal inconvenience. So viewed, in the present case while conviction of the appellant for the reasons discussed may be maintained, the sentence is to be set aside. I am fortified in my view by law laid down in following reported cases: 51. In both the eventualities the victim of the alleged offence and the prosecution witnesses shall be put to equal inconvenience. So viewed, in the present case while conviction of the appellant for the reasons discussed may be maintained, the sentence is to be set aside. I am fortified in my view by law laid down in following reported cases: 51. In Bhoop Ram v. State of U.P., AIR 1989 SC 1329 in almost similar circumstances where the appellant was erroneously treated as an adult accused and not given benefit available under U.P. Children’s Act 1951, sentenced to life imprisonment but found at appellate stage to have been child within the meaning of the Act on the date of commission of the offence, the Supreme Court held "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 v. State of U.P., (1981) 4 SCC 149 : ( AIR 1982 SC 685 ) that where an accused had been wrongly sentenced of imprisonment instead of being treated as a "Child" under S. 2(4) of the U.P. Children Act and sent to an approved school and the accused had crossed the maximum age of detention to 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 in so far as the sentences imposed upon the appellant are quashed." 52. 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 in so far as the sentences imposed upon the appellant are quashed." 52. In Gurpeet Singh v. State of Punjab, AIR 2006, SC 191 where plea of juvenility was raised and sustained for the first time before the Supreme Court, the Apex court held: "But it is well settled that in such an eventuality, this court should first consider the legality or otherwise of conviction of the accused and in case the conviction is upheld, a report should be called 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 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 this court is passing final order upon the report received from the trial court, he no longer continues to be juvenile, the sentence imposed against him would be liable to be set aside." 53. In Jayendra v. State of U.P. 1981, SCC (Cri) 809 and Shiv Shankar Singh v. State of Bihar 1982, SCC (Cri) 258 where the accused was found to have been juvenile on the date of commission of offence, the Supreme Court confirmed the order of conviction but the order of sentence was set aside. On the other hand in Hukum Das v. State of Madhya Pradesh 1983, SCC (Cri) 105 and Gopi Nath Gosh v. State of West Bengal 1984 SCC (Cri) 478, matters under Madhya Pradesh Bal Adhiyan 1970 and West Bengal Children Act 1959 the trial was held to have been without jurisdiction and both conviction as well as sentence passed against the accused appellant set aside. However, in view of discussion made above as regards scheme of the Act mapped out in Sections 7(2), 21, 25 and 26 and as Gurpeet Singh’s case (Supra) is latest on the subject, in the point of time and it lays down a general principle of law independent of the factual matrix of the case, the right course is to follow law laid down in Gurpeet Singh’s case (Supra) and while maintaining conviction set aside the sentence imposed by the trial court. 54. The appellant, held to have been a juvenile on the date of commission of the offence, has been convicted of the offence punishable under section 376 RPC and sentenced to life imprisonment. To ask the Trial Court to make a report on the juvenility of the appellant is one of the courses open to the Court However, as this Court has in exercise of its powers under Section 7 (3) of the Act already undertaken an exercise to get the appellant examined by a Medical Board, and the opinion of the Medical Board supported by necessary documents as regards details of medical examination are available, on the file, there is no reason to opt for such a course. So viewed there is no need to ask the Trial Court to return finding on the juvenility of the appellant when such a conclusion may very well be arrived at by this Court on the strength of material available on the file and against the backdrop of discussion made above. In the circumstance, to ask the Trial Court to make a fresh inquiry shall only prolong agony of the appellant. 55. For the reasons discussed while no disagreement is recorded as regards finding returned on the guilt of the appellant, the sentence awarded is set aside. Needless to mention that the appellant is no more a juvenile and thus not required to be referred to Juvenile Welfare Board. The appellant be released forthwith. 56. The Criminal Appeal and Confirmation is accordingly disposed of. 57. Before parting with this judgment it is necessary to point out that J&K Juvenile Justice Act like other juvenile legislations is a socially oriented and beneficial legislation. It carries out the constitutional mandate embodied in Article 39 (f) Constitution of India as also fulfils requirements of International Covenants on the subject. 57. Before parting with this judgment it is necessary to point out that J&K Juvenile Justice Act like other juvenile legislations is a socially oriented and beneficial legislation. It carries out the constitutional mandate embodied in Article 39 (f) Constitution of India as also fulfils requirements of International Covenants on the subject. In the event the trial court or the court before which the criminal proceedings against a juvenile are brought ignores to perform its statutory duties, the delinquent juvenile, is practically robbed of the benefit which is otherwise available to him. The delinquent juvenile may, as in the present case, at times end up in jail or suffer imprisonment notwithstanding a clear prohibition under Juvenile Justice Act against his arrest, detention or imprisonment. The Magistrate/Court is expected, nay, required to be alive to mandate of section 32 of the Act and whenever it appears that the person brought before the court is a juvenile, it must initiate an inquiry and take all evidence as may be necessary to find whether the person is a juvenile. It follows that the committal/trial court has not to wait for an application from the prosecution or on behalf of the person brought before it. The Magistrate/Court in terms of section 32 of the Act is to initiate an inquiry of its own, whenever the person brought before it appears to be a juvenile within meaning of the Act It is the duty of the Magistrate/Court to appreciate the responsibility placed upon it under the Act to make the benefits available under the Act, held to be rehabilitatory in nature to the juvenile and not allow the mandate of the Act to be defeated by apathy, indifference and lackadaisical approach or on mere technicalities. The Magistrate/Court as laid down in Gopi Nath Gosh’s case (supra) must embark on an enquiry as regards age of the accused even where an accused appears a little older than the age prescribed under the Act. In the aforesaid case an inquiry has been suggested wherein the accused appears to be aged 21 years or below. The purpose is to ensure availability of the benefit under the Act, to a delinquent juvenile and to return a finding on age of accused who appears to be juvenile at an earliest even at the cost of the postponement of the trial, till such inquiry is concluded. Judgment may be circulated.