Jai Parkash vs State of Haryana

S.P. Bangarh, J.—Appellant allegedly committed rape on prosecutor on 11.07.2004, who then was under the age of 16 years. After completion of investigation, police report in terms of Section 173 Cr.P.C. was submitted before the learned Illaqa Magistrate, who later committed the case to the learned Court of Session, that was entrusted to the learned Additional Sessions Judge, Rewari. After receipt of the Sessions case, learned trial Court framed charge under Sections 376 IPC and 506 IPC against the appellant, whereto, he pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned.

At the trial, prosecution examined six witnesses and closed the evidence.

After the closure of prosecution evidence, the appellant was examined u/s 313 Cr.P.C. wherein, he denied the allegations of prosecution, pleaded innocence and false implication in the case. He was called upon to enter in defence, but he closed the same without examining any witness.

After hearing both the sides, learned trial Court vide impugned judgment found the appellant guilty of commission of offences punishable under Sections 376 IPC and 506 IPC and vide impugned order of sentence, sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 5,000/- and in default of payment of fine to further undergo rigorous imprisonment for three months for commission of offence punishable u/s 376 IPC and to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 500/- and in default of payment of fine to further undergo rigorous imprisonment for one month for commission of offence punishable u/s 506 IPC.

Aggrieved against the impugned judgment and order of sentence, appellant has filed instant appeal with prayer for acceptance, thereof, and for his acquittal of offences wherefore, he has been convicted and sentenced vide impugned judgment and order of sentence by the learned trial Court.

When application u/s 389 Cr.P.C. was filed, it was mentioned, therein, that appellant was below 18 years of age at the time of alleged occurrence and that fact was not considered by the learned trial Court. A copy of the birth certificate dated 13.03.2008 (Annexure A2) was also attached with the application. As per this certificate, the appellant was born on 10.12.1988. The occurrence allegedly took place on 11.07.2004. In this manner, the appellant was below the age of 18 years and the learned counsel for the appellant contended that at the time of commission of alleged offences, he was juvenile in conflict with law in terms of Section 2(1) of the Juvenile Justice (Care and Protection of Children) Act. 2000 (the Act for short).

In this view of the matter, inquiry as to whether the appellant was juvenile at the time of alleged commission of offence is required to be conducted in terms of Section 7A of the Act supra, which reads as under:--

7A-Procedure to be followed when claim of juvenility is raised before any Court

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

As per proviso to Section 7(A)(1) of the Act, a claim of juvenility may be raised before any Court, at any stage, even, after disposal of the case and such claim shall be determined in terms of provisions contained in this Act.

Therefore, before decision of this appeal, report must be called from the Principal Magistrate, Juvenile Justice Board, Rewari, as to whether the appellant, on the date of alleged commission of offences was juvenile or not.

Resultantly, the matter is referred to the Principal Magistrate, Juvenile Justice Board, Rewari for holding inquiry and to submit report, as to whether the appellant on the date of commission of alleged offences was juvenile in terms of Section 2(j) of the Act. Trial court record be sent to the Principal Magistrate, Juvenile Justice Board, Rewari for 25.09.2013 and report shall be sent by him within three months after the latter date. Appellant shall appear before the Principal Magistrate, Juvenile Justice Board, Rewari on 25.9.2013.