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Himachal Pradesh High Court · body

2019 DIGILAW 952 (HP)

Saurabh v. State of H. P.

2019-07-12

SURESHWAR THAKUR

body2019
JUDGMENT : SURESHWAR THAKUR, J. 1. The instant Criminal Revision Petition, stands directed, by the petitioner, against, the concurrently recorded verdicts, made, both by the Juvenile Justice Board, Kangra at Dharamshala, vis-a-vis, the inquiry conducted, under Sections 354, 354-A and Section 354- B, of, the IPC, and, under Section 12, of, the Protection of Children from Sexual Offences Act, and, the affirming thereto verdict, recorded by the learned Sessions Judge, Kangra at Dharamshala, (a) wherethrough, the juvenile in conflict, with law was found involved in the offences punishable, under Sections 354, 354-A and Section 354- B of the IPC, and, under Section 12, of, the Protection of Children from Sexual Offences Act, (b) and, he was ordered to be kept, in custody for a period of one month, hence, at an observation home, and, also compensation, vis-a-vis, the victim was assessed, and, was directed to be defrayed, vis-a-vis, the victim, by the DLSA. 2. The facts relevant to decide the instant case are that on 8.10.2014, Banita Devi came to Police Station and got recorded her statement under Section 154 of the Cr.P.C., wherein, she has stated that on 5.1.0.2014 at about 9 p.m., after having dinner her daughter (prosecutrix) had told her that in the day time when she went to the house of child in conflict with law then child in conflict with law had taken her to his room and had lowered her and his pent. It is alleged that the appellant also made the prosecutrix to sit in his lap. On these allegations, the FIR was registered and inquiry was made by the police. Thereafter, the police completed all the investigation formalities. 3. On conclusion of the investigations, into the offences, allegedly committed by the juvenile in conflict with law, a report under Section 173, of, the Code of Criminal Procedure, stood hence prepared, and, filed before the Juvenile Justice Board, Kangra at Dharamshala. 4. The accused/petitioner herein, stood put, notice of accusation, by the Juvenile Justice Board, for his, committing offences, punishable under Sections 354, 354-A and 354-B of the IPC, and, under Section 12, of, the Protection of Children from Sexual Offences Act. In proof of the prosecution case, the prosecution examined 13 witnesses. 4. The accused/petitioner herein, stood put, notice of accusation, by the Juvenile Justice Board, for his, committing offences, punishable under Sections 354, 354-A and 354-B of the IPC, and, under Section 12, of, the Protection of Children from Sexual Offences Act. In proof of the prosecution case, the prosecution examined 13 witnesses. On conclusion of recording, of the prosecution evidence, the statement of the juvenile, in conflict with law, stood, under Section 13(4) of the Juvenile Justice (Care and Protection of Children) Rules 2007, hence recorded by the Board, wherein, he claimed innocence, and, pleaded false implication, in the case. 5. On an appraisal of the evidence on record, the Board, returned findings of conviction, upon, the juvenile in conflict with law/petitioner herein, for his, committing offences punishable Sections 354, 354-A and 354-B of the IPC, and, under Section 12, of, the Protection of Children from Sexual Offences Act. In an appeal preferred therefrom, by the petitioner herein, before the learned Sessions Judge concerned, the latter affirmed the apposite findings of conviction, and, sentence, as, stands recorded in impugned therebefore judgment, as, pronounced by the Board, and, affirmed by the learned Sessions Judge concerned. 6. The petitioner herein/juvenile in conflict with law, stands aggrieved, by the findings recorded, by the learned Sessions Judge concerned, in, affirmation, to the judgment of conviction recorded against him, by the Board. The learned counsel appearing for the petitioner herein/juvenile in conflict with law, has concertedly, and, vigorously contended qua the findings of conviction, recorded by the learned Sessions Judge concerned, rather standing not based, on, a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by it, of the material on record. Hence, he contends qua the findings of conviction warranting reversal by this Court, in, the exercise of its revisional jurisdiction, and, theirs being replaced by findings of acquittal. 7. On the other hand, the learned Deputy Advocate General has with considerable force, and, vigour, contended qua the findings of conviction, recorded by the learned Sessions Judge concerned, rather standing based on a mature and balanced appreciation, by him, of the evidence on record, and, theirs not necessitating any interference, rather theirs meriting vindication. 8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 9. 8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 9. The learned counsel appearing, for the juvenile in conflict with law, has contended, (a) that the concurrent verdicts rendered, upon, the juvenile, in conflict with law, rather arising from gross misappreciation, of evidence existing, on record. He has in making, the afore espousal, before this Court, hence, focused, upon, (b) the minor prosecutrix through declared fit, by the board, to make a statement, hers thereafter while meteing an answer, to a question, "have you remember, what you have told your mother?" rather through gesture in, the, disaffirmative, hence, by nodding her head, obviously declined, to, render any affirmative answer thereto, (c) hence he contends that the concurrent verdicts recorded, vis-a-vis, the inquired into offences rather warranting interference by this Court. However, the afore submission, addressed before this Court, is not amenable, for acceptance by this Court, (d) as, the learned counsel appearing for the juvenile in conflict with law, has remained oblivious, vis-a-vis, the prior thereto question meted to her, by the board, with an echoing therein, qua, the juvenile in conflict with law, holding his residence in the neighbourhood, of the prosecutrix, (e) and, whereto, she meted, an, answer in affirmative, (f) and, also he has remained unmindful, to a query put to her by the Board, vis-a-vis, hers proceeding to join, the company of the juvenile, in conflict with law, rather for playing with him, whereto also she meted, an answer, in the affirmative. He has also slighted, the effect of a query put to her, by the Board, vis-a-vis, hers making any disclosure to her mother, whereto, she answered in the affirmative. He has also slighted, the effect of a query put to her, by the Board, vis-a-vis, hers making any disclosure to her mother, whereto, she answered in the affirmative. The effect thereof, when stands combined, with, the learned counsel for the juvenile, in conflict with law, not crossexamining the prosecutrix, and, more particularly, hers meteing, an, answer in, the, affirmative to a query put to her qua hers, making disclosures, to her mother, (g) and, upon, conjoining the afore, with her mother, during, the course of her examination-in-chief, rendering, a, testification in consonance, with, the narratives, borne in the FIR, embodied in Ex.PW11/C, (h) besides with hers, during, the course of her crossexamination, by the learned defence counsel, standing meted, a, suggestion qua hers, during, night hours, visiting the house of the juvenile, in conflict with law, and, thereat, the latter rendering apologies, and hers thereto, hence, meteing an answer in the affirmative, (i) rather all galvanising an inference qua the defence acquiescing qua the relevant occurrence rather taking place, and, further effect thereto, is that, all the effects, of the minor prosecutrix, upon, query(ies) being put to her by the Board, vis-a-vis, hers remembering the content(s), of, the, disclosures made by her to her mother, rather through the nod of head, rendering an answer, in the disaffirmative, hence standing throughly effaced. 10. However, the learned counsel, appearing for the juvenile in conflict with law, has hence, thereafter proceeded to also address a submission, before this Court (i) that with PW-9, during, the course of his crossexamination rather admitting a suggestion put to him, vis-a-vis, the patient examined, by him, lacking the basic sexual knowledge, (ii) thereupon, the inquired into penal misdemeanors, and, orders of conviction, concurrently recorded, upon, the juvenile in conflict with law, not carrying hence the requisite mens rea. However, the afore submission is rendered rudderless, and, is also obliterated, vis-a-vis, all its relevant effects, (iii) given the learned defence counsel while crossexamining, the mother, of the prosecutrix rather meteing a suggestion to her qua the juvenile in conflict with law, during, night hours, upon, the parents of the prosecutrix, visiting his house, rather his thereat rendering apologies, to them, rather obviously hence, are, personificatory, vis-a-vis, the juvenile in conflict with law, at the relevant time, also holding the requisite mens rea, for, his committing the inquired into offences. 11. 11. The learned counsel appearing for the juvenile in conflict with law, has proceeded, to make a further submission, for lessening the rigour, of the punishment imposed, upon, the juvenile in conflict with law, wherethrough, he was ordered to be kept, for a period of one month, in an observation home, (a) as, extantly, the juvenile in conflict in law, has joined the military services, and, also when he has, since, the occurrence and uptill now, reformed himself, and, when there, is no evidence on record, vis-a-vis, his previous ill conduct, thereupon, hence, the ends of justice would met in case, the juvenile in conflict with law, is let off, after admonition, hence, in consonance, with subsection 1(a) of Section 18 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The learned Additional Advocate General, however, opposes the afore prayer, made before this Court, by the learned counsel appearing for the juvenile in conflict with law, (a) and, has made a submission, that the proviso, to sub-section (1) of Section 24 of the Juvenile Justice (Care and Protection of Children) Act, 2015, when, is not applicable, vis-a-vis, the juvenile in conflict with law, (b) thereupon, the benefit of sub-section (1) (a), of, Section 18 of the Juvenile Justice (Care and Protection of Children) Act, 2015, is, not bestowable, upon, the juvenile in conflict with law, (c) and, even if the orders made initially, by the Board, and, later affirmed, by the learned Sessions Judge concerned, wherethrough, the juvenile in conflict with law, stands, directed to be detained, at an observation home, are meritworthy, thereupon also hence with the juvenile in conflict with law, rather, joining, the, military services rather would not statutorily attract, any stigma, of, any disqualification. 12. 12. This Court, has considered, the respective submissions, as, addressed before this Court, by the learned counsel appearing for the juvenile in conflict with law, and, by the learned Additional Advocate General, and, though, this Court affirms the impugned verdicts, of, conviction, concurrently made, upon, the juvenile in conflict with law, initially by the Juvenile Justice Board, and, lateron affirmed by the learned Sessions Judge concerned, (I) yet rather with both the Juvenile Justice Board, and, the learned Sessions Judge concerned, hence maintaining, the defrayment of compensation, to the victim, by the DLSA concerned, (ii) and, when hence it would appropriately alleviate, the, grievance(s) of the minor prosecutrix, (iii) besides when the juvenile in conflict with law, has, at the earliest tendered apology, for his penal misdemeanor, to the prosecutrix, and, her parents, besides when there is no evidence on record, with, respect to his prior ill conduct, and, also, vis-a-vis, his subsequent ill-conduct, consequently, the order directing, the juvenile in conflict with law to be kept, for a period of one month, in an observation home, is modified, to his, being let off, on admonition. 13. For the reasons which have been recorded hereinabove, the instant criminal revision petition, is partly allowed, and, the verdicts impugned before this Court is/are modified in the afore manner. Consequently, the dispositional order rendered by the Juvenile Justice Board, wherethrough, the juvenile in conflict is ordered to be kept for a period of one month, in a observation home, is modified to his being, let off on admonition. All pending applications also stand disposed of. Records be sent back forthwith.