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2013 DIGILAW 327 (CHH)

State of M. P. (Now C. G. ) v. Santosh Kumar

2013-11-18

R.N.CHANDRAKAR, SUNIL KUMAR SINHA

body2013
JUDGMENT Sunil Kumar Sinha, J. 1. Being aggrieved with the judgment of acquittal dated 26th of April, 1997 passed in S.T. No. 244/1996 by the Seventh Additional Sessions Judge, Bilaspur, the State has filed this appeal. The two respondents were prosecuted for the offences punishable under Sections 376(2)(g) and 306/34 IPC. 2. The facts, briefly stated, are as under: (2.1) Deceased Uttara Kumari was aged about 17 years. On 29-04-1996 at about 8-00 p.m., she had gone out of her house to answer the call of nature. The case of the prosecution is that, on the way, she was caught by the respondents who dragged her to a nearby field and respondent No. 1 committed forcible sexual intercourse against her with the help of respondent No. 2. The deceased thereafter returned to her house, poured kerosene on her body and put herself on fire. She got 80% burn injuries. When her father Sukhdas (P.W.-2) asked about the reason, she made oral dying declaration before her father and many other villagers, including Dindayal (F.W.-7) and Munna (P.W.-8). She made positive allegations against the respondents. The deceased was then taken to the Police Station where she herself lodged First Information Report (F.I.R.-Ex. P. 19). In the said report also she made positive allegations against the respondents. Her medical examination was conducted by Dr. H.K. Dixit (P.W.-3), who also recorded a dying declaration (Ex. P-5), in which she made certain allegations against the respondents. The deceased was referred to the District Hospital, Bilaspur where she died during the course of treatment. The autopsy was performed by Dr. P.K. Tiwari (P.W.-4). He was accompanied by a lady doctor namely Dr. (Smt.) Vimla Jain. Apart from the bum injuries, there was no external or internal injury on the dead body of the deceased. On internal examination of the private parts, they found that there were no injuries and the hymen was absent. (2.2) The case of the prosecution was based on the oral dying declaration made before the villagers, and the two other dying declarations i.e. FIR (Ex. P-5) lodged by the deceased and the written dying declaration recorded by Dr. H.K. Dixit (P.W.-3). The learned Sessions Judge disbelieved all these evidence on the face of the evidence of Dr. (2.2) The case of the prosecution was based on the oral dying declaration made before the villagers, and the two other dying declarations i.e. FIR (Ex. P-5) lodged by the deceased and the written dying declaration recorded by Dr. H.K. Dixit (P.W.-3). The learned Sessions Judge disbelieved all these evidence on the face of the evidence of Dr. P.K. Tiwari (P.W.-4) that the deceased had not received any injury in her private part and her hymen was not present, therefore, the story set-forth was suspicious. The Sessions Judge, therefore, acquitted the respondents. Hence this appeal. (2.3) On 02-09-2013, when the matter came up for hearing, counsel for the respondents pressed two applications (I.A. Nos. 2/2013 & 3/2013) claiming that the respondents were juveniles on the date of commission of offence i.e. 29-04-1996, therefore, their cases should be dealt with under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act, 2000). They had filed many documents. Thereafter, the matter was sent for enquiry to the concerned Sessions Judge in terms of Section 7-A of the Act, 2000. (2.4) The Sessions Judge, after the enquiry, has sent his report dated 25th September, 2013. According to the said report, the date of birth of respondent No. 1 is 13-07-1979 and the date of birth of respondent No. 2 is 20-02-1979 and they were aged about 16 years, 9 months and 16 days and 17 years 2 months and 9 days on the date of incident i.e. on 29-04-1996. 3. Mr. Ashish Shukla, learned Govt. Advocate appearing on behalf of the appellant/state, has not disputed the above report sent by the Sessions Judge, therefore, it is held that the respondents were juveniles on the date of incident and their cases are required to be dealt with the provisions of the Act, 2000 taking into account their juvenility. 4. We have heard counsel for the parties. 5. Learned Govt. Advocate has argued that there were 3 dying declarations, one oral dying declaration made before the father and the villagers and two written dying declarations; one is in the form of FIR and the other which was recorded by the doctor, and there was no reason to disbelieve the dying declarations, therefore the judgment of acquittal vitiates. 6. On the other hand, learned counsel for the respondents have opposed these arguments. 7. 6. On the other hand, learned counsel for the respondents have opposed these arguments. 7. Sukhdas (P.W.-2) is father of the deceased. He has deposed that on the fateful night, the deceased had gone out of the house to answer the call of nature. She returned after some time, went inside the room and then put herself on fire by pouring kerosene on her body. She came out from the room in burning condition and was rescued by the villagers. When they asked, she narrated that she was subjected to forcible sexual intercourse in the above manner by the respondents and thereafter, she put herself on fire. She was saying that thereafter there was nothing for her to remain alive. Evidence of Sukhdas (P.W.-2) is duly corroborated by the evidence of Dindayal (P.W.-7) and Munna (P.W.-8). It is also corroborated by the evidence of Leela Bai (P.W.-13), mother of the deceased. These witnesses were put to lengthy cross-examinations, but nothing material could be brought, on which, either their testimonies may be discarded or it may be said that they were falsely implicating the respondents. We are of the view that in the above facts and circumstances of the case, the oral dying declaration was fully established. 8. The deceased was taken to the Police Station where she herself had lodged FIR (Ex. P-19). This named report was lodged against both the respondents. In the said report also, she made allegations against the respondents. The said report bears thumb impression of the deceased. It has been duly proved by the prosecution. 9. In view of the judgment in Munnu Raja and another Vs. State of Madhya Pradesh AIR 1976 SC 2199 , the said report lodged by the deceased to the police officer, after her death, was a dying declaration and was admissible in the evidence under Section 32(1) of the Evidence Act. Nothing adverse has been brought on record against the FIR lodged by the deceased. This FIR which was a dying declaration also corroborated the first story disclosed by the deceased before her parents and the villagers when she was rescued by them just after the incident. 10. The deceased was taken to the hospital and was examined by Dr. H.K. Dixit (P.W.-3). She had received 80% burn injuries, however, she was fully conscious. Looking to her critical condition, Dr. H.K. Dixit (P.W.-3), immediately recorded her dying declaration (Ex. 10. The deceased was taken to the hospital and was examined by Dr. H.K. Dixit (P.W.-3). She had received 80% burn injuries, however, she was fully conscious. Looking to her critical condition, Dr. H.K. Dixit (P.W.-3), immediately recorded her dying declaration (Ex. P-5). It comes in his evidence that the deceased had stated that she was subjected to forcible sexual intercourse by the respondents in the above manner and thereafter, she put herself on fire. 11. On due appreciation of the above evidence, we find that it was proved on the oral and written dying declarations of the deceased that she was subjected to forcible sexual intercourse by the respondents in the above manner and thereafter she put herself on fire as she had gone into deep depression thinking that now why she should remain alive. 12. The learned Sessions Judge has disbelieved the entire incident on that part of the evidence of Dr. P.K. Tiwari, in which, it comes that there was no internal injury on the private part of the deceased, her hymen was absent and she was habitual to sexual intercourse. The Sessions Judge held that it was not a case that the hymen was ruptured and the deceased lost her virginity on the said date, therefore, it cannot be said to be a case of forcible sexual intercourse or the gang rape. We do not find above finding to be logical. In a case of rape, it is not necessary that the prosecutrix must loose her virginity on the said date only and she must receive some internal injuries. There may be the cases in which prosecutrix, who may be habitual to sexual intercourse, is put to forcible intercourse by commission of rape or a gang rape. Therefore, the above finding is totally incorrect and we do not support the same. 13. In view of the above, we record a finding that in the instant case, the prosecutrix was subjected to gang rape by the respondents due to which she later on committed suicide and the respondents were liable for offences under Sections 376(2)(g) and 306/34 IPC. 14. Now the question arises as to how the case of the respondents should be dealt with and what punishment, in the above facts and circumstances of the case, should be awarded to them. 15. 14. Now the question arises as to how the case of the respondents should be dealt with and what punishment, in the above facts and circumstances of the case, should be awarded to them. 15. The Juvenile Justice Act, 1986 was subsequently repealed by the Juvenile Justice (Care and Protection of Children) Act, 2000. On 22-08-2006 Section 2(1) of the 2000 Act was amended stating that "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence and has not completed 18 years of age as on the date of commission of such offence. The Juvenile Justice (Care and Protection of Children) Rules, 2007 were brought into force on 26-10-2007. As per Rule 97(2), all the cases pending which have not received a finality have to be dealt with and disposed of in terms of the provisions of the Act, 2000 as amended on 22-08-2006 and the 2007 Rules. According to the above rules, therefore, the respondents would be entitled to benefit under the provisions of the Act, 2000. In such situation, the respondents ought to have been tried by the competent Board and not by the regular Court in terms of Section 14 of the Act, 2000. 16. Section 15 of the Act, 2000 provides about the order that may be passed regarding a juvenile. Under Section 15(1)(g), it has been provided that the Board may make an order directing the juvenile to be sent to a special home for a period of three years. Under the proviso, the Board has power, for the reasons to be recorded, to reduce the period of stay to such period as it thinks fit. 17. Section 16(1) of the Act, 2000 provides that notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in conflict with law shall be sentenced to death or imprisonment for any terms which may extend to imprisonment for life, or committed to prison in default of payment of fine or in default of furnishing security. According to proviso, where a juvenile who has attained the age of sixteen years has committed an offence and the Board is satisfied that the offence committed is so serious in nature or that his conduct and behavior have been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under this Act is suitable or sufficient, the Board may order the juvenile in conflict with law to be kept in such place of safety and in such manner as it thinks fit and shall report the case for the order of the State Government. Sub-section (2) of Section 16 further provides that on receipt of a report from a Board under sub-section (1), the State Government may make such arrangement in respect of the juvenile as it deems proper and may order such juvenile to be kept under protective custody at such place and on such conditions as it thinks fit. Provided that the period of detention so ordered shall not exceed in any case the maximum period provided under Section 15 of this Act. 18. Section 19 of the Act, 2000 provides for removal of disqualification attaching to conviction. It provides that notwithstanding anything contained in any other law, a juvenile who has committed an offence and has been dealt with under the provisions of this Act shall not surfer disqualification, if any, attaching to a conviction of an offence under such law. 19. Therefore, it is clear that in no case a juvenile on holding him guilty for an offence can be sent for more than the period prescribed under Section 15 of the Act, 2000. 20. We have already held that the respondents were juveniles on the date of the incident and their cases are to be dealt with under the provisions of the Act, 2000. In normal circumstances, a sentence not less than 10 years would have been awarded to the respondents for the offence punishable under Section 376(2)(g) IPC and a sentence of either description of a term which may extend to 10 years would have been awarded under Section 306 IPC. In normal circumstances, a sentence not less than 10 years would have been awarded to the respondents for the offence punishable under Section 376(2)(g) IPC and a sentence of either description of a term which may extend to 10 years would have been awarded under Section 306 IPC. However, since we have held that the respondents were juveniles on the date of incident, therefore, the said sentences cannot be awarded to them in terms of Section 15(1)(g) of the Act, 2000. 21. In Bhim @ Uttam Ghosh Vs. State of West Bengal (2010) 2 Scale 212, the Supreme Court observed in paras 18 and 19 as under: 18. Having held so, the next question for consideration is as to what order of sentence is to be passed against the appellants, who stands convicted for the offence punishable under Section 307 IPC, correctness whereof is not put in issue before us. The appellant is now aged about 42 years. Keeping his age in view, we feel that it would not be conducive for the environment of the special home, particularly to the interest of other juveniles housed therein, to send the appellant there or to keep him at some other place, as postulated in Section 16 of the 2000 Act for the remaining period in terms of Section 15 of the said Act. 19. Accordingly, while sustaining the conviction of the appellant, we quash the sentence awarded to him and direct his release forthwith, if not required in any other case. The appeal succeeds partly, to the extent indicated above. 22. In the instant case, the respondents were aged about 16-17 years in the year 1996. Now they are aged about 33-34 years. Keeping in view the age of the respondents, it does not appear to be reasonable to send them to the special home or to keep them at any other permissible place as it would I not be in the interest of the juveniles who may be kept there. In view of this, we simply set aside the acquittal of the respondents and convict them under Sections 376(2)(g) and 306/34 IPC but we do not impose any further punishment against them in the peculiar circumstances of the case. We further direct that the respondents shall not incur any disqualification attaching to the above conviction now awarded to them by this Court. We further direct that the respondents shall not incur any disqualification attaching to the above conviction now awarded to them by this Court. The appeal stands disposed of on the above terms.