Bishambhar vs State

Ranjana Pandya, J.—This revision has been preferred against the judgment and order passed on 25.10.1989 in Criminal Appeal No. 107 of 1986 upholding the conviction of the revisionist u/s 376 passed by 1st Assistant Additional Sessions Judge, Etah in S.T. No. 280 of 1986 on 25.09.1986 convicting the appellant revisionist u/s 376 and sentencing him to undergo three years R.I. and Rs. 2000/- as fine with defaulting clause.

Facts in brief are that on 12.06.1986 at about 04:00 P.M. Km. Pushpa aged about 11 years who was the niece of the complainant Mahavir Singh had gone to the village fields with other girls where the buffaloes were grazing. Suddenly, the accused revisionist Bishambhar aged about 20 to 21 years came near Pushpa and asked Vimla who was also looking after the cattle which were grazing, to bring food and water for the revisionist. Vimla went to the village after that the revisionist Bishambhar took Km. Pushpa in a "Kotha" of Dharamshala of Shiv Dutt and started raping her. The girl Km. Pushpa raised hue and cry at which father of the victim along with Hari Singh who was just taking out the grass from the field, rushed to the spot, and saw the girl lying naked on the ground and the accused was committing rape on her. Both the witnesses tried to catch hold of Bishambhar, but he ran away from the other door. There was bleeding from the private parts of the girl. The report was lodged by Mahavir Singh on which investigation started and charge sheet was submitted against the accused. The prosecution examined as PW-1 Mahaveer, PW-2 Hari Singh, Km. Pushpa PW-3, Dr. Manjulata Varshney PW-4, Head Constable Kunwar Pal Singh PW-5, S.I. Sri S.K. Tyagi PW-6.

Charges were framed against the accused.

The statement of the accused was recorded u/s 313 Cr.P.C. in which he denied all the allegations.

In the Statement u/s 313 Cr.P.C., the accused again denied the charges that he was not guilty.

After hearing both the parties and perusing the evidence on record, the trial court passed the impugned sentence.

Feeling aggrieved, the accused revisionist filed criminal appeal no. 107 of 1986 which was dismissed on 25.10.1989.

Feeling aggrieved the revisionist has preferred this present revision.

I have heard learned counsel for the revisionist, learned A.G.A. and perused the record.

Learned counsel for the revisionist has argued that he does not want to argue the case on merit. He has only raised one plea that the revisionist was a juvenile at the time of occurrence, hence, he should have been given benefit of Juvenile Justice (Care and protection of Children) Act, 2000.

There is no doubt that the plea of juvenility can be taken at any point of time. During the pendency of revision, counsel for the revisionist took the plea of juvenility on which the report was called for from the Assistant Sessions Judge who vide order dated 14.05.1990, passed in Criminal Case No. 02 of 1989 gave his finding that the revisionist Bishambhar was more than 15 and half years old on the date of occurrence i.e. on 12.06.1986.

The Juvenile Justice (Care and protection of Children) Act, 2000 takes care of the juveniles who have ceased to be the juvenile.

Section 3 of the Juvenile Justice (Care and protection of Children) Act, 2000 reads as follows:-

Continuation of Inquiry in respect of juvenile who has ceased to be a juvenile.-Where an inquiry has been initiated against a juvenile in conflict with law or a child in need of care and protection and during the course of such inquiry the juvenile or the child ceases to be such, then, notwithstanding anything contained in this Act or in any other law for the time being in force, the inquiry may be continued and orders may be made in respect of such person as if such person had continued to be a juvenile or a child.

As far as the procedure to be adopted in determining the age of the juvenile is concerned, this procedure has been given in Rule 12 of the Juvenile Justice (Care and protection of Children) Act, 2007 which runs as follows:-

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 or 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 by seeking evidence by obtaining-

(a) (i) the matriculation or equivalent certificates, 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.

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 7A, 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 concerned 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.

According to Rule 12 of the rules, the Additional Sessions Judge gave an opportunity to the parties to adduce the evidence. The revisionist failed to produce any documentary evidence. He was got examined medically according to which his age was determined to be more than 15 and half years as on the date of occurrence.

There can be a margin of two years of either side as far such age of the juvenile is concerned but in marginal cases benefit should definitely go to the accused.

Counsel for the revisionist has relied upon 2011(74) ACC 871 (Shahnawaj Vs. State of U.P. and another) in which the Apex Court has held that:

In Rajinder Chandra Vs. State of Chhattisgarh and Another, "this Court once again considered the entry relating to date of birth in the mark sheet and concluded as under:

It is true that the age of the accused is just on the border of sixteen years and on the date of the offence and his arrest he was less than 16 years by a few months only in Arnit Das v. State of Bihar this Court has, on the review of judicial opinion, held that while dealing with the question of determination of the age of the accused for the purpose of finding out whether he is a juvenile or not, a hypertechnical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and 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. The law, so laid down by this Court, squarely applies to the facts of the present case.

In Arnit Das v. State of Bihar, this Court held that while dealing with a question of determination of the age of an accused, for the purpose of finding out whether he is a juvenile or not, a hypertechnical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he is a juvenile and if two views may be possible on the same evidence, the Court should lean in favour of holding the accused to be juvenile in borderline cases.

Hence, as said earlier in border line cases benefit should go to the accused.

Counsel for the revisionist has also placed reliance upon Bhim @ Uttam Ghosh Vs. State of West Bengal, in which the Apex Court has laid down as follows:

It is plain from the language of the Explanation to section 20 that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, etc, the determination of juvenility of a juvenile has to be in terms of clause (1) of Section 2, even if the juvenile ceases to be a juvenile on or before 1.4.2001, when the 2000 Act came into force, and the provisions of the said Act would apply as if the said provision had been in force for all purposes and for all material times when the alleged offence was committed.

It is, thus, manifest from a conjoint reading of sections 2(k), 2(1), 7A, 20 and 49 of the 2000 Act, read with Rule 12 and 98 of the Juvenile Justice (Care and protection of Children) Rules, 2007 that all persons who were below the age of eighteen years on the date of commission of the offence would be treated as juveniles even if the claim of juvenility is raised after they have attained the age of eighteen years on or before the date of the commencement of the 2000 Act and were undergoing sentences upon being convicted.

In the instant case, according to the report submitted on behalf of the State, the appellant was about 15 years old at the time of the commission of the offence. The correctness of the report is not in question and, therefore, in light of the afore-stated legal position, the appellant has to be held to be a juvenile, within the meaning of section 2(1) of the amended 2000 Act, and is to be governed by the provisions of the said Act.

Learned counsel for the revisionist has vehemently argued that since admittedly the revisionist was a juvenile on the date of occurrence, he should be dealt with as far as sentence is concerned in accordance with the Juvenile Justice (Care and protection of Children) Act, 2000.

In this regard, he has placed reliance upon 2011(73) ACC 971 (Daya Nand Vs. State of Haryana) in which it has been held that applying the ratio of the Constitution Bench decision, the appellant would not be entitled to the protections and benefits of the provisions of the 2000 Act, since he was over 18 years of age on April 1, 2001; when the 2000 Act came into force. But the matter did not stop at that stage. After this Court''s decision in Pratap Singh''s case decided that since number of amendments of a very basic nature were introduced in the 2000 Act w.e.f. August 22, 2006 by Act 33 of 2006. Some of the provisions incorporated in the 2000 Act by the 2006 amendment insofar as relevant for the present are reproduced as follows:-

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 there under, 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 orders and the sentence, if any, passed by a Court shall be deemed to have no effect.

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:

[Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.

Explanation.-In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (1) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.]

Juvenile in conflict with law undergoing sentence at commencement of this Act.-In any area in which this Act is brought into force, the State Government shall direct that a juvenile in conflict with law who is undergoing any sentence of imprisonment at the commencement of this Act, shall, in lieu of undergoing such sentence, be sent to a special home or be kept in fit institution in such manner as the State Government thinks fit for the remainder of the period of the sentence; and the provisions of this Act shall apply to the juvenile as if he had been ordered by the Board to be sent to such special home or institution or, as the case may be, ordered to be kept under protective care under sub-section (2) of section 16 of this Act:

Provided that the State Government or as the case may be the Board, may, for any adequate and special reason to be recorded in writing, review the case of a juvenile in conflict with law undergoing sentence of imprisonment, who has ceased to be so on or before the commencement of this Act, and pass appropriate order in the interest of such juvenile.

Explanation.-In all cases where a juvenile in conflict with law is undergoing a sentence of imprisonment at any stage on the date of commencement of this Act, his case including the issue of juvenility, shall be deemed to be decided in terms of clause (1) of Section 2 and other provisions contained in this Act and the rules made there under, irrespective of the fact that he ceases to be a juvenile on or before such date and accordingly he shall be sent to the special home or a fit institution, as the case may be, for the remainder of the period of the sentence but such sentence shall not in any case exceed the maximum period provided in section 15 of this Act.

The effect of the amendments in the 2000 Act were considered by this Court in Hari Ram Vs. State of Rajasthan and Another, In Hari Ram this Court held that the Constitution Bench decision in Pratap Singh''s case was no longer relevant since it was rendered under the un amended Act. In Hari Ram this Court held and observed as follows:

The law as now crystallised on a conjoint reading of Sections 2(k), 2(1), 7A, 20 and 49 read with Rules 12 and 98, places beyond all doubt that all persons who were below the age of 18 years on the date of commission of the offence even prior to 1-4-2001, would be treated as juveniles, even if the claim of juvenility was raised after they had attained the age of 18 years on or before the date of commencement of the Act and were undergoing sentence upon being convicted.

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Section 7A of the Juvenile Justice Act, 2000, made provision for the claim of juvenility to be raised before any Court at any stage, as has been done in this case, and such claim was required to be determined in terms of the provisions contained in the 2000 Act and the Rules framed there under, even if the juvenile had ceased to be so on or before the date of commencement of the Act.

Accordingly, a juvenile who had not completed eighteen years on the date of commission of the offence was also entitled to the benefits of the Juvenile Justice Act, 2000, as if the provisions of Section 2(k) had always been in existence even during the operation of the 1986 Act.

The said position was re-emphasised by virtue of the amendments introduced in Section 20 of the 2000 Act, whereby the Proviso and Explanation were added to Section 20, which made it even more explicit that in all pending cases, including trial, revision, appeal and any other criminal proceedings in respect of a juvenile in conflict with law, the determination of juvenility of such a juvenile would be in terms of Clause (1) of Section 2 of the 2000 Act, and the provisions of the Act would apply as if the said provisions had been in force when the alleged offence was committed.

Thus, summarising the aforesaid provisions and the law laid down, the accused was more than 15 and half years of age but less than 18 years of age, I have also perused the statement u/s 313 Cr.P.C. given by the accused before the trial court on 09.09.1986. On 09.09.1986, the age of the accused has been given as 14 years. Thus, it is clear that even at the time of trial the accused did take plea that he was 14 years of age at the time of occurrence and on the date of occurrence his age as determined to the medical evidence proved to be below 18 years.

This under the aforementioned facts and circumstances, I think the matter should be sent back to the Juvenile Justice Board to pass the sentence afresh according to the rules as given in the Act. Consequently, the revision deserves to be allowed partly.

Accordingly the revision is partly allowed. The conviction of the revisionist is upheld. The sentence passed by the trial court as well as the appellate court is set aside. Let the matter be sent back to the Juvenile Justice Board, Etah who shall pass sentence according to law. The revisionist should appear before the Juvenile Justice Board on 17.09.2014.