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2014 DIGILAW 440 (CHH)

Harishankar v. State Of Chhattisgarh

2014-12-04

GOUTAM BHADURI

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JUDGMENT GOUTAM BHADURI, J. 1. This is an appeal against the judgment dated 29.12.1997, passed by the Additional Sessions Judge, Korba, in Sessions Trial No. 170 of 1996, whereby the appellant has been convicted under Section 363, 366 & 376 of IPC and sentenced to undergo R.I. for 3 years, 3 years and 7 years respectively and fine of Rs. 500/- and 500/- for each and in default of payment of fine, additional R.I. for 6 months for each count. 2. The instant appeal was filed in the year 1998. The appellant/accused was enlarged on bail by suspension of sentence vide order dated 31.3.1998. 3. Learned counsel for the appellant would submit that all over, the appellant remained in jail for a period of 10 months approximately, which has not been disputed by the State counsel. 4. The briefly stated facts of the prosecution was that the prosecutrix was staying with Tobiyas Tigga and was prosecuting her study in government higher secondary school Jamnipali at Class-9th. On 2.2.1996 at 6.30 o'clock, the prosecutrix without disclosing anything had left her home and the note was appended on the door that she is going long away and family members should not try to search for her. At the time of incident, the age of the prosecutrix was 14 years. The matter was reported subsequently to the police and the investigation was started. Subsequently during the investigation, it came to fore that the appellant accused had enticed the prosecutrix and as such they eloped to other place. Further on 21.2.1995, the prosecutrix was recovered from the house of Thakurdin, thereafter, the appellant was caught hold up and further investigation was made. Ultimately, the charge sheet was filed U/s. 363, 366 and 376 of I.P.C. 5. After evaluating the entire evidence on record, the learned Court below by an order dated 29.12.1997 has convicted the accused/appellant as aforesaid, therefore, the appeal was filed. 6. During the pendency of this appeal, an application was filed by the appellant U/s. 7-a of the Juvenile Justice (Care & Protection of Children) Act, 2000 on 23.4.2014, wherein it was claimed that proper enquiry directed to be made to determine the age of the appellant from the date of commission of offence in as much as it was claimed that on the date of commission of offence, the appellant was juvenile. Subsequently this Court by order dated 23.4.2014 has passed the order, wherein the Trial Court was directed to conduct enquiry relating to the age of the appellant and submit his report about the juvenility of the appellant on the date of commission of offence. In response to such order, the detailed enquiry was conducted by the Additional Sessions Judge, Korba and the various statements were recorded including mark-sheet and other documents were examined. After the detailed enquiry, the Court of Additional Sessions Judge after examination of the mark-sheet, birth certificate and the documents placed and on the basis of the statement of the witness had given a finding that on the date of incident i.e. on 2.2.1995, the appellant/accused was aged about 17 years, 1 month and 26 days. 7. Learned counsel for the appellant placed his reliance in the matter of Dharambir vs. State (NCT of Delhi) and Another, (2010) 5 SCC 344 , wherein in Para-7 the Hon'ble Court has held as under:- "7. Before adverting to the question, we may note that the issue with regard to the date, relevant for determining the applicability of either of the two Acts, insofar as the age of the accused, who claims to be a juvenile/child, is concerned, is no longer res integra. On account of divergence of views on the point in Umesh Chandra vs. State of Rajasthan, (1982) 2 SCC 202 and Arnit Das vs. State of Bihar, (2000) 5 SCC 488 , the matter was referred to the Constitution Bench in Pratap Singh vs. State of Jharkhand, (2005) 3 SCC 551 . Affirming the view taken by a Bench of three Judges in Umesh Chandra Case, the Constitution Bench held that the relevant date for determining the age of the accused, who claims to be a juvenile/child, would be the date on which the offence has been committed and not the date when he is produced before the authority or in the court." 8. In the present case the appellant was not a juvenile under the Juvenile Justice Act, 1986 as he had crossed 16 years of age and was aged about 17 years, one month and 26 days. In the present case the appellant was not a juvenile under the Juvenile Justice Act, 1986 as he had crossed 16 years of age and was aged about 17 years, one month and 26 days. The conviction in this case was made on 29.12.1997, thereafter, the appeal was preferred in 1998 and the case was pending before the High Court in appeal on the date Juvenile Justice (Care and Protection of Children) Act 2000 came into force and therefore, the matter to be dealt with U/s. 20 of Juvenile Justice (Care and Protection of Children) Act 2000, which requires the High Court to record a finding about the guilt of the accused but short of passing an order of sentence against him. 9. In the instant case, the counsel for the appellant would submit that they do not challenge the finding of conviction arrived at by the learned Court below arid supported the same even as well on merit. However, emphasis has been made that the entire case has to be governed by the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000. 10. I have perused the record. The case of the prosecution in short was that girl/victim was staying with the complainant Tobiyas Tigga and wife Mery Tigga and was studying in the Government Higher Secondary School, Yamuna Vihar, Jamnipali in Class-9th. On 2.2.1996, she left the home with a note that she is going long away. Subsequently on report being made, the investigation started and the girl was recovered on 21.2.1996. According to the prosecution, at the time of offence, the age of the girl was 15 years. During the trial, the appellant abjured his guilt and claimed to be tried and subsequently the prosecution adduced their evidence. During the course of evidence, the prosecution has examined the complainant Tobiyas Tigga as (P.W.-l) and the girl was examined as (P.W.-2) and according to P.W.-2, the girl, she was forced to stay alongwith the appellant and it was also stated that she was subjected to forceful sexual intercourse. The Dr. Smt. U.J. Elen (P.W.-7) has proved the fact that the girl was subjected to sexual intercourse by medial report Ex. P/9. The age of the girl was also proved to be of 15 years on the date of incident. Further the prosecution has proved the document Ex. P/14 i.e. the radiologist report, proved by Dr. The Dr. Smt. U.J. Elen (P.W.-7) has proved the fact that the girl was subjected to sexual intercourse by medial report Ex. P/9. The age of the girl was also proved to be of 15 years on the date of incident. Further the prosecution has proved the document Ex. P/14 i.e. the radiologist report, proved by Dr. R. Jitpure (P.W.-11), wherein the age of the girl was shown to be 15 years. Vaginal slides were also subjected to FSL and prosecution has proved the fact by Ex. P/17 that the vaginal slides were containing the spermatozoa, therefore, the finding was arrived at by the learned Court below that the sexual intercourse was committed was founded on evidence. 11. I have meticulously examined the witnesses and the evidence and according to opinion of this Court, the appellant had committed the offence U/s. 363, 366 and 376 of I.P.C. and the finding so arrived by the learned Court below is well merited. 12. Now with respect to the question of sentence to be awarded, the Hon'ble Supreme Court considered this aspect in case of Jitendra Singh @ Babboo Singh and Another vs. State of Uttar Pradesh, (2013) 11 SCC 193 , wherein after detailed discussion had come to the finding that in one set of cases the Court has found the juvenile guilty of the crime alleged to have been committed by him but he has gone virtually unpunished since the Court quashed the sentence awarded to him. In another set of cases, the Court has taken the view on the facts of the case that the juvenile is adequately punished for the offence committed by him by serving out some period in detention. In the third set of cases, the Court has remitted the entire case for consideration by the jurisdictional Juvenile Justice Board, both on the innocence or guilt of the juvenile as well as the sentence to be awarded if the juvenile is found guilty. In the fourth set of cases, the Court has examined the case on merits and after having found the juvenile guilty of the offence, remitted the matter to the jurisdictional Juvenile Justice Board on the award of sentence. 13. In the present case the offence was committed by the appellant when the Juvenile Justice Act, 1986 was in force. In the fourth set of cases, the Court has examined the case on merits and after having found the juvenile guilty of the offence, remitted the matter to the jurisdictional Juvenile Justice Board on the award of sentence. 13. In the present case the offence was committed by the appellant when the Juvenile Justice Act, 1986 was in force. Therefore, only the punishment not greater than those postulated by the Juvenile Justice Act, 1986 ought to be awarded to him. This is the requirement of Article 20 (1) of the Constitution. The punishments provided under the Juvenile Justice Act, 1986 are given in Section 21 thereof and they read as follows:- "21. Orders that may be passed regarding delinquent juveniles - (1) Where a Juvenile Court is satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the Juvenile Court may, if it so thinks fit:- (a) Allow the juvenile to go home after advice or admonition. (b) Direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety as that Court may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years. (c) Direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well-being of the juvenile for any period not exceeding three years. (d) Make an order directing the juvenile to be sent to a special home:- (i) In the case of a boy over fourteen years of age or of a girl over sixteen years of age, for a period of not less than three years. (ii) In the case of any other juvenile, for the period until he ceases to be a juvenile:- Provided that.... Provided further that.... (e) Order the juvenile to pay a fine if he is over fourteen years of age and earns money. (ii) In the case of any other juvenile, for the period until he ceases to be a juvenile:- Provided that.... Provided further that.... (e) Order the juvenile to pay a fine if he is over fourteen years of age and earns money. (2) Where an order under clause (b), clause (c) or clause (e) of sub-section (1) is made, the Juvenile Court may, if it is of opinion that in the interests of the juvenile and of the public it is expedient so to do, in addition make an order that the delinquent juvenile shall remain under the supervision of a probation officer named in the order during such period, not exceeding three years, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the delinquent juvenile: Provided that.... (3) - (4) * * *" 14. A perusal of the punishments provided for under the Juvenile Justice Act, 1986 indicate that given the nature of the offence committed by the appellant, advising or admonishing him is hardly a punishment that can be awarded since it is not at all commensurate with the gravity of the crime. Similarly, considering his age of about 40 years, it is completely illusory to except the appellant to be released on probation of good conduct, to be placed under the care of any parent, guardian or fit person. For the same reason, the appellant cannot be released on probation of good conduct under the care of a fit institution nor can he be sent to a special home under Section 10 of the Juvenile Justice Act, 1986 which is intended to be for the rehabilitation and reformation of delinquent juveniles. The only realistic punishment that can possibly be awarded to the appellant on the facts of this case is to require him to pay a fine under clause (e) of Section 21 (1) of the Juvenile Justice Act, 1986. 15. Since it has been held that under the facts and circumstances, since the offence was committed and on the date of offence, the appellant was juvenile it would be relevant to quote Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000, which reads as follows:- "20. 15. Since it has been held that under the facts and circumstances, since the offence was committed and on the date of offence, the appellant was juvenile it would be relevant to quote Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000, which reads as follows:- "20. Special provision in respect of pending cases - Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that Court as if this Act had not been passed and if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence." 16. In view of the above discussion, it is established that the appellant was juvenile on the date of offence, therefore, the sentence awarded to the appellant is set-aside without interfering with the order of conviction. Since it has been held that the appellant is guilty of commission of crime and the finding to this fact is arrived at. Considering the appellant has spent only 7-8 months in incarceration as against the sentence of 7 years in facts and circumstances of the case, I deem it proper to make a reference to the juvenile justice board for passing appropriate orders in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act 2000 for determining the proper quantum of fine that should be levied on the appellant and the compensation that should be paid to the victim. In arriving such conclusions, the Board will take into consideration the facts of the case also the fact that the appellant has undergone some period of incarceration. 17. In a result, the appeal is partly allowed with a direction given above. HEAD LINES Juvenile if found guilty reference can be made to Juvenile Justice Board for sentence. Appeal Partly Allowed.