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2014 DIGILAW 291 (ORI)

Devi Prasad Sahu v. State of Orissa

2014-04-24

S.K.MISHRA

body2014
JUDGMENT : S. K. MISHRA, J. - In this appeal the appellant having been convicted for the offence under Section 376(2)(f) of the Indian Penal Code and sentenced to undergo R. I. for five years and to pay a fine of Rs. 3,000/- in default to undergo R.I. for six months has assailed the conviction and sentence. 2. The case of the prosecution in short is that on 5.4.2010 at about 5.00 P.M. Smt. Puspanjali Sahu was sitting on the outer Varandah of her house situated in village Bandhapali under Barpali Police Station. The victim aged about three years is her minor daughter who was playing in the front ward of that house. It is alleged that accused came there and took the minor daughter to play with her. He carried her to a lonely place situated at a short distance from that house and forcibly committed rape on that minor girl under a tamarind tree. The victim started screaming and having heard it, the informant rushed to the spot and upon arrival of the informant the accused fled away. Subsequently, the informant found that there was bleeding from the private part of the victim. She brought her to her house and narrated the incident to her husband and other villagers. Since it was night she could not proceed to police station to lodge FIR. A meeting was also held attended by villagers to settle the dispute but there was no settlement of the same. On the day i.e. 6.4.2010 she reported the matter in writing at Barpali Police Station, which led to the institution of the case. The investigation was completed and charge sheet against the present appellant was filed under Section 376(2)(f) of the IPC. 3. The plea of the defence is of complete denial and false implication. 4. In course of hearing the prosecution examined 15 witnesses out of out 20 charge sheeted witnesses. Two witnesses were examined on behalf of the defence. 5. After taking into consideration the materials available on record, the learned Addl. Sessions Judge, F.T.C., Bargarh found that the prosecution has satisfactorily proved the charge against the accused beyond all reasonable doubt and hence he convicted the appellant under Section 376(2)(f) of the IPC and sentenced him as described above. 6. The matter was carried in appeal to this Court. After taking into consideration the materials available on record, the learned Addl. Sessions Judge, F.T.C., Bargarh found that the prosecution has satisfactorily proved the charge against the accused beyond all reasonable doubt and hence he convicted the appellant under Section 376(2)(f) of the IPC and sentenced him as described above. 6. The matter was carried in appeal to this Court. Learned counsel for the appellant filed an application before this Court raising the plea of juvenility of the accused for the first time in the appellate Court. This Court taking into consideration the ratio decided in Abuzar Hossain alias Gulam Hossain v. State of West Bengal; AIR 2013 SC 1020 ; wherein the Supreme Court has held that a claim of juvenility may be raised at any stage even after final disposal of the case, directed the Sessions Judge to conduct an inquiry with regard to the claim of juvenility of the appellant and submit a report before this Court. 7. Pursuant thereto, the learned Addl. Sessions Judge held an inquiry and came to the conclusion that the date of birth as per the School Admission Register of the Nodal U.P.M.E. School, Bandhapali reflects the age of the appellant to 01.5.92. Since the occurrence took place on 5.4.2010, learned Sessions Judge reported that on the date of the incident the appellant was 17 years 11 months 4 days old and hence he was a juvenile on that day. Regarding determination of age by ossification test, learned Sessions Judge relied upon the reported case of Jodhbir Singh v. State of Punjab, (2003) 54 OCR (SC) 331. The Supreme Court in that case has held that the age determination contemplated under Section 7-A of the Juvenile Justice Act (hereafter referred to as the "Act") for brevity) read with Rule 12 of the Rules enables the Court to seek evidence and in that process the Court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificate, the Court needs to obtain the date of birth certificate from the School first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the Court needs to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the Court needs to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the Court, for reasons to be recorded, may if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year. It is observed once the Court following the aforesaid procedures, passed an order that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been clearly laid down in Sub-rule (5) of Rule 12 that no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof after referring to Sub-rule (3) of Rule 12. Further Section 49 of the Act also draws a presumption of the age of the juvenility on its determination. 8. Learned Sessions Judge therefore relying on the aforesaid case held that in absence of matriculation certificate, school admission register from which entry relating to the date of birth has been proved by the Headmaster of the School, who produced the same from his official custody, the age of the convict appellant is determined to be below the age of 18 years on tile date of incident. He did not refer the case for medical examination as on such examination, the present age of the appellant can be determined thereby. 9. The matter was placed before this Court and as per order dated 14.8.2013 this Court directed the Addl. Standing Counsel to take appropriate steps for subjecting the appellant to medical examination for determination of his present age at V.S.S. Medical College and Hospital, Burla and obtain a report. Upon reference the Professor & HOD, Department of FM & T, V.S.S. Medical College, Burla reported that the age of the appellant is above 22 years of age on the date of taking of X-rays i.e. on 29.8.2013. 10. Basing on the report submitted by the learned Addl. Upon reference the Professor & HOD, Department of FM & T, V.S.S. Medical College, Burla reported that the age of the appellant is above 22 years of age on the date of taking of X-rays i.e. on 29.8.2013. 10. Basing on the report submitted by the learned Addl. Sessions Judge, learned counsel for the appellant submitted that the appellant being a juvenile on the date of commission of the offence should have been tried under the Act and appropriate order should have been passed. Learned Addl. Standing Counsel, on the other hand, relied upon the medical examination report and submits that the age of the victim as on date is 22 years which shows that he was not a juvenile on the date of occurrence and hence the appellant should not be treated as a juvenile to be dealt with in the provision of the Act. 11. Section 7-A of the Act and Rule 12 prescribe the procedure to be followed when claim of juvenility is raised before any Court. Such provisions read as follows: "Section 7 A - Procedure to be followed when claim of juvenility is raised before any Court - (1) Whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be : Provided that a claim of juvenility may be raised before any Court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the Court finds a person to be a juvenile on the date of commission of the offence under Sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a Court shall be deemed to have no effect." Rule 12 - Procedure to be followed in determination of age - (1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board, or as the case may be, the Committee be seeking evidence by obtaining – (a) (i) the matriculation or equivalent certificate, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i)(ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in Sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7-A, Section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in Sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in Sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law. (emphasis added) 12. (emphasis added) 12. In interpreting this provision, the Supreme Court in the case of Ashwani Kumar Saxena v. State of M.P. (2012) 53 OCR (SC) 761 at paragraph 34 as ruled as follows.: "Age determination inquiry" contemplated under Section 7A of the Act r/w Rule 12 of the 2007 Rules enables the Court to seek evidence and in that process, the Court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the Court need obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the Court need to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question for obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the Court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year." 13. Following the aforesaid principles, this Court is of the opinion that the determination of age by examining the Headmaster of the Nodal U.P. School and accepting the school admissions register shall take precedence over the medical opinion rendered by the Professor & HOD, Department of FM & T, V.S.S.Medical College, Burla. 14. The Supreme Court in the case of Vijaya Singh v. State of Delhi (2012) 8 Supreme Court Cases 763 has held that Section 7-A makes provision for a claim of juvenility to be raised before any Court at any stage, even after final disposal of a case and sets out the procedure which the Court is required to adopt, when such claim of juvenility is raised. It provides for an inquiry, taking of evidence as may be necessary (but not affidavit) so as to determine the age of a person and to record a finding whether the provision in question is a juvenile or not. 15. It provides for an inquiry, taking of evidence as may be necessary (but not affidavit) so as to determine the age of a person and to record a finding whether the provision in question is a juvenile or not. 15. In that view of the matter, this Court comes to the conclusion that on the date of incident, which is relevant as per the ratio decided by the Five Judge Bench of the Supreme Court in Pratap Singh v. State of Jharkhand and another (2005) 3 SCC 551 , the appellant was 17 years 11 months and 4 days and, therefore, he was a juvenile and he has to be treated as a juvenile and to be tried by the Juvenile Justice Board. 16. In such circumstances, this Court is inclined to allow this appeal and set aside the order dated 10.8.2011 passed by the learned Addl. Sessions Judge (Fast Track Court), Bargarh in C.T. Case No. 136/4 of 2011-11. It is held that the appellant was a juvenile on the date of incident and has to be tried by the Juvenile Justice Board. Learned Sessions Judge, Bargarh is directed to make over the files to the Juvenile Justice Board to proceed with the trial. Appeal allowed.