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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 628-629 OF 2013
(Arising out of S.L.P (Crl.) Nos.5059-60 of 2012)
Bharat Bhushan …Appellant
Versus
State of Himachal Pradesh …Respondent
J U D G M E N T
T.S. THAKUR, J.
1. Delay condoned.
2. Leave granted.
3. These appeals arise out of judgments and orders dated
8
th April, 2010 and 30th April, 2010 passed by the High Court
of Himachal Pradesh at Shimla whereby Criminal Appeal
No.406 of 1995 has been allowed, the order of acquittal
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passed by the trial Court set aside, the appellant convicted
for an offence punishable under Section 376 of the Indian
Penal Code and sentenced to undergo rigorous imprisonment
for a period of five years besides a fine of Rs.50,000/-. In
default of payment of fine, the appellant has been directed to
undergo further imprisonment for a period of one year.
4. The appellant was charged with commission of an
offence of rape upon a girl hardly 11 years old while she was
working in the fields along with another girl aged around 10
years in Village Kanda, District Shimla, Himachal Pradesh. At
the trial, the prosecution examined not only the prosecutrix
who supported the charge but also other witnesses including
PW-2-her companion whose name is withheld to protect her
identity and who had escaped an attempted assault by the
co-accused, Dinesh Kumar. An alarm raised by PW-2
appears to have attracted the attention of PW-3-Piar Devi,
mother of PW-2, who had rushed to the spot to rescue the
girls, whereupon both the accused appears to have fled
away. PW-5-Misru-the father of the prosecutrix and PWs-7, 8
and 9 namely Dr. Ajay Negi, Dr. Suresh Bansal and Dr. D.C.
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Negi were also examined at the trial all of whom have
supported the prosecution case in their respective
depositions. The trial Court, however, came to the conclusion
that the prosecution had failed to prove its case against the
appellant, the deposition of the witnesses mentioned above
notwithstanding and, accordingly, acquitted both the accused
persons of the charges framed against them.
5. Criminal Appeal No.406 of 1995 was then filed by the
State of Himachal Pradesh against the order of acquittal to
assail the view taken by the trial Court qua the appellant as
also his companion Dinesh Kumar. The High Court has by its
judgment and order dated 8th April, 2010 allowed the appeal
in part, reversed the view taken by the trial Court and
convicted the appellant for rape, punishable under Section
376 of the Indian Penal Code. As regards Dinesh Kumar, the
High Court was of the view that the order of acquittal passed
in his favour was justified. The High Court was of the view
that the prosecution story was reliable and inspired
confidence not only because of the inherent worth of the
deposition of the prosecutrix but also because of the fact that
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her story was fully corroborated by PW-2, the other girl who
escaped from the clutches of Dinesh Kumar, the co-accused
and that of PW-3 Piar Devi who had rushed to the place of
occurrence to rescue the victim after hearing an alarm raised
by her daughter. More importantly, the High Court found
that the deposition of Dr. Suresh Bansal who had examined
the prosecutrix establish the commission of rape upon the
victim. The appellant was on such re-appraisal of evidence
convicted under Section 376 of the Indian Penal Code.
6. The High Court next examined the question of sentence
to be awarded to the appellant and by separate order dated
30th April, 2010 sentenced the appellant to rigorous
imprisonment for five years and a fine of Rs.50,000/- and a
default sentence of one year as already noticed above. What
is important is that while doing so the High Court noticed and
rejected the contention urged on behalf of the appellant that
he was only 16 years and 4 months old at the time offence
was committed, hence, entitled to the benefit of provisions of
Section 20 of the Juvenile Justice (Care and Protection of
Children) Act, 2000. Relying upon the decision of a
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Constitution Bench of this Court in Pratap Singh v. State
of Jharkhand and Anr. (2005) 3 SCC 551, the High Court
held that the benefit of the Act was not legally available to
the petitioner.
7. The High Court also relied upon the decisions of this
Court in Jameel v. State of Maharashtra (2007) 11 SCC
420, where this Court held that since the appellant in that
case had completed 16 years of age as on the date of the
occurrence, the Juvenile Justice (Care and Protection of
Children) Act, 2000, Act had no application. Reliance was
also placed by the High Court upon the decision of this Court
in Ranjit Singh v. State of Haryana (2008) 9 SCC 453
where this Court had relying upon the Judgment in Jameel’s
case (supra) rejected the contention that the petitioner was
entitled to the benefit of Juvenile Justice (Care and
Protection of Children) Act, 2000, since he was below 18
years as on the date of the commission of the offence. In
conclusion, the High Court held that Section 20 of the 2000
Act was inapplicable since the accused was over 16 years of
age at the time of commission of the offence i.e. 22nd June,
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1993 and over 18 years of age on 01-04-2001, the date
when the 2000 Act came into force. The present appeal filed
by the appellant assails the correctness of the above two
orders as already noticed earlier.
8. We have heard learned Counsel for the parties at some
length. The legal position regarding the entitlement of the
appellant who was more than 16 years but less than 18
years of age as on the date of commission of the offence on
22nd June, 1993, is in our view settled by the decision of this
Court in Hari Ram v. State of Rajasthan (2009) 13 SCC
211. This Court has in that case traced the history of the
legislation and reviewed the entire case law on the subject.
Relying upon the decision of the Constitution Bench of this
Court in Pratap Singh’s case (supra), this Court in Hari
Ram’s case (supra) reiterated that the question of juvenility
of a person in conflict with law has to be determined by
reference to the date of the incident and not the date on
which cognizance is taken by the Magistrate. Having said
that, this Court held that the effect of the pronouncement in
Pratap Singh’s case (supra) on the second question, viz.
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whether the 2000 Act was applicable in a case where the
proceedings were initiated under the 1986 Act and were
pending when the 2000 Act came into force, stood
neutralised by the amendments to Juvenile Justice (Care and
Protection of Children) Act, 2000, by Act 33 of 2006. The
amendments made the provisions of the Act applicable even
to juveniles who had not completed the age of 18 years on
the date of the commission of offence said this Court.
Speaking for the Court Altamas Kabir, J. (as His Lordship
then was) observed:
“58. Of the two main questions decided in Pratap
Singh case, one point is now well established that
the juvenility of a person in conflict with law has to
be reckoned from the date of the incident and not
from the date on which cognizance was taken by the
Magistrate. The effect of the other part of the
decision was, however, neutralised by virtue of the
amendments to the Juvenile Justice Act, 2000, by
Act 33 of 2006, whereunder the provisions of the
Act were also made applicable to juveniles who had
not completed eighteen years of age on the date of
commission of the offence.
59. The law as now crystallised on a conjoint
reading of Sections 2(k), 2(l), 7-A, 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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68. 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.”
9. These decisions have been followed in several other
subsequent pronouncements of this Court including the
decisions of this Court in Raju and Anr. v. State of Haryana
(2010) 3 SCC 235, Dharambir v. State (NCT of Delhi) and
Anr. (2010) 5 SCC 344, Mohan Mali and Anr. v. State of
M.P. (2010) 6 SCC 669, Jitendra Singh @ Babboo Singh
and Anr. v. State of U.P. (2010) 13 SCC 523, Daya Nand
v. State of Haryana (2011) 2 SCC 224, Shah Nawaz v.
State of U.P. and Anr. (2011) 13 SCC 751 and Amit Singh
v. State of Maharashtra and Anr. (2011) 13 SCC 744.
10. The attention of the High Court was, it is obvious, not
drawn to the decision in Hari Ram’s case (supra), although
the same was pronounced on 5th May, 2009 i.e. almost a
year earlier to the pronouncement of the impugned
judgment in this case. Be that as it may, as on the date the
offence was committed the appellant was admittedly a
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juvenile having regard to the provisions of Sections 2(k),
2(l), 7-A, 20 and 49 read with Rules 12 and 98 of the Rules
framed under the Juvenile Justice (Care and Protection of
Children) Act, 2000. He was, therefore, entitled to the
benefit of the said provision, which benefit, it is evident, has
been wrongly denied by the High Court only because the
High Court remained oblivious of the pronouncement of this
Court in Hari Ram’s case (supra).
11. The question then is whether the High Court could have
at all recorded a conviction against the appellant who as seen
above was a juvenile on the date of the commission of the
offence. The answer to that question, in our opinion, lies in
Section 20 of the 2000 Act which reads as under:
“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.
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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.”
12. The above makes it manifest that proceedings pending
against a juvenile in any Court as on the date the 2000 Act
came into force had to continue as if the 2000 Act had not
been enacted. More importantly Section 20 (supra) obliges
the Court concerned to record a finding whether the juvenile
has committed any offence. If the Court finds the juvenile
guilty, it is required under the above provision to forward the
juvenile to the Board which would then pass an order in
accordance with the provisions of the Act as if it had been
satisfied on enquiry under the Act that the juvenile had
committed an offence.
13. Even in Pratap Singh’s case (supra), this Court had
interpreted Section 20 of the 2000 Act, and held that Section
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20 was attracted to cases where the person, if male, had
ceased to be a juvenile under the 1986 Act being more than
16 years of age but had not yet crossed the age of 18 years.
This Court declared that it was only in such cases that
Section 20 was attracted and the Court required to record its
conclusion as to the guilt or innocence of the accused. This
Court observed:
“31. Section 20 of the Act as quoted above deals
with the special provision in respect of pending
cases and begins with non-obstante clause. The
sentence "Notwithstanding anything contained in
this Act all proceedings in respect of a juvenile
pending in any Court in any area on date of which
this Act came into force" has great significance. The
proceedings in respect of a juvenile pending in any
court referred to in Section 20 of the Act is relatable
to proceedings initiated before the 2000 Act came
into force and which are pending when the 2000 Act
came into force. The term "any court" would include
even ordinary criminal courts. If the person was a
"juvenile" under the 1986 Act the proceedings would
not be pending in criminal courts. They would be
pending in criminal courts only if the boy had
crossed 16 years or girl had crossed 18 years. This
shows that Section 20 refers to cases where a
person had ceased to be a juvenile under the 1986
Act but had not yet crossed the age of 18 years then
the pending case shall continue in that Court as if
the 2000 Act has 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, shall forward the
juvenile to the Board which shall pass orders in
respect of that juvenile.”
(emphasis
supplied)
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14. Reference may also be made to the decision of this
Court in Bijender Singh v. State of Haryana and Anr.
(2005) 3 SCC 685, where this Court reiterated the legal
position while interpreting the provisions of the Act and said:
“8. One of the basic distinctions between the 1986
Act and the 2000 Act relates to age of males and
females. Under the 1986 Act, a juvenile means a
male juvenile who has not attained the age of 16
years, and a female juvenile who has not attained
the age of 18 years. In the 2000 Act, the distinction
between male and female juveniles on the basis of
age has not been maintained. The age-limit is 18
years for both males and females.
9. A person above 16 years in terms of the 1986 Act
was not a juvenile. In that view of the matter the
question whether a person above 16 years becomes
“juvenile” within the purview of the 2000 Act must
be answered having regard to the object and purport
thereof.
10. In terms of the 1986 Act, a person who was not
juvenile could be tried in any court. Section 20 of
the 2000 Act takes care of such a situation stating
that despite the same the trial shall continue in that
court as if that Act has not been passed and in the
event, he is found to be guilty of commission of an
offence, a finding to that effect shall be recorded in
the judgment of conviction, if any, but instead of
passing any sentence in relation to the juvenile, he
would be forwarded to the Juvenile Justice Board (in
short the 'Board') which shall pass orders in
accordance with the provisions of the Act as if it has
been satisfied on inquiry that a juvenile has
committed the offence. A legal fiction has, thus,
been created in the said provision...
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12. Thus, by reason of legal fiction, a person,
although not a juvenile, has to be treated to be one
by the Board for the purpose of sentencing which
takes care of a situation that the person although
not a juvenile in terms of the 1986 Act but still
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would be treated as such under the 2000 Act for the
said limited purpose.”
(emphasis supplied)
15. Section 20 of the 2000 Act fell for interpretation even in
Dharambir v. State (NCT of Delhi) (2010) 5 SCC 344,
where too this Court held that the explanation appended to
the same enables the Court to determine the juvenility of the
accused even after conviction and that the Court can while
maintaining the conviction set aside the sentence imposed
upon him and to forward the case to the Board for passing
an appropriate order under the Act. This Court observed:
“11. 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 (l) of Section 2, even if the juvenile
ceases to be a juvenile on or before 1st April, 2001,
when the Act of 2000 came into force, and the
provisions of the 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. Clause (l) of Section 2 of the Act of
2000 provides that "juvenile in conflict with law"
means a "juvenile" who is alleged to have
committed an offence and has not completed
eighteenth year of age as on the date of commission
of such offence. Section 20 also enables the Court to
consider and determine the juvenility of a person
even after conviction by the regular Court and also
empowers the Court, while maintaining the
conviction, to set aside the sentence imposed and
forward the case to the Juvenile Justice Board
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concerned for passing sentence in accordance with
the provisions of the Act of 2000.”
16. The above position was restated in Daya Nand v.
State of Haryana (2011) 2 SCC 224 and Kalu @ Amit v.
State of Haryana (2012) 8 SCC 34.
17. In the present case, the appellant was not a juvenile
under the 1986 Act as he had crossed the age of 16 years.
This case was, however, pending before the High Court in
appeal on the date the 2000 Act came into force and had,
therefore, to be dealt with under Section 20 of the Act which
required the High Court to record a finding about the guilt of
the accused but stop short of passing an order of sentence
against him. Inasmuch as the High Court convicted the
appellant, it did not commit any mistake for the power to do
so was clearly available to the High Court under the
provisions of Section 20. What was not permissible was
passing of a sentence for which purpose the High Court was
required to forward the juvenile to the Juvenile Board
constituted under the Act. The order of sentence is,
therefore, unsustainable and shall have to be set aside.
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18. The next question then is
whether the conviction
recorded by the High Court was justified on merits and, if it
was, whether we ought to refer the appellant to the Juvenile
Justice Board at this stage.
Our answer is in the affirmative
qua the first part and negative qua the second.
The High
Court has, in our opinion, properly appreciated the evidence
on record especially the deposition of the prosecutrix, her
companion PW-2 and her aunt Piar Devi-PW-3 as also her
parents. The High Court has also correctly appreciated the
medical evidence available on record especially the
deposition and the report of PW-8-Dr. Suresh Bansal, the
relevant portion of whose report reads as under:
“...On examination I found that the female child had
not started menstruating. There was painful
separation of thighs. No marks of violence were
present. Clotted blood was present on labia majora
and on thighs. Secondary sexual characters were
developed. Breasts were developed according to
age. Pubic and axillary hairs were present but were
scanty. Hymen was freshly fractured. Posterior
fourchette was torn. The chid admitted one little
finger with pain. The vagina was congested.....
Injury mentioned in MLC Ext. PW-8/C appeared on
the prosecutrix was subject to sexual intercourse...”
19. The prosecutrix was between 9 to 12 years according to
the deposition of PW-9-Dr. D.C. Negi and deposition of PW-
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13 who proved her date of birth to be 13th April, 1982. The
presence of human blood on the cap with which the appellant
appears to have wiped the blood after the sexual assault is
also an incriminating circumstance which the High Court has
rightly taken into consideration while finding the appellant
guilty. We, therefore, see no reason to interfere with the
order of conviction as recorded by High Court on merits.
20. Coming then to the question of reference to the
Juvenile Justice Board, we are of the view that such a
reference is unnecessary at this distant point of time. The
appellant is nearly 36 years old by now and a father of three
children. He has already undergone nearly three years of
imprisonment awarded to him by the High Court. In the
circumstances, reference to the Juvenile Justice Board at this
stage of his life would, in our opinion, serve no purpose. The
only option available is to direct his release from custody.
21. In the result, we dismiss criminal appeal arising out of
SLP (Crl.) No.5059 of 2012 directed against the order of the
High Court dated 8th April, 2010 and uphold the conviction of
the appellant for the offence under Section 376 IPC. Criminal
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appeal arising out of SLP (Crl.) No.5060 of 2012 is, however,
allowed and the order dated 30th April, 2010 passed by the
High Court is set aside with a direction that the appellant
shall be released from custody unless he is required in
connection with any other case.
….……………...…………J.
(T.S. THAKUR)
……….………...……...…J.
(DIPAK MISRA)
New Delhi
April 26, 2013
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