Rajesh and Another Vs The State of Haryana

Sham Sunder, J.@mdashThis appeal is directed against the judgment of conviction dated 21.03.1994, and the order of sentence dated 24.03.1994, rendered by the Court of Additional Sessions Judge, Rohtak, vide Crl. Appeal No. 260-SB of 1994 which it convicted Rajesh and Jitender, accused, (now appellants ), as under:-

The substantive sentences of the accused were ordered to run concurrently. The trial Court also convicted Ram Singh, accused, for the aforesaid offence, who is not an appellant in this appeal.

2. The facts, in brief, are that, on 24.09.1992,the prosecutrix (the name is not being mentioned in view of the pronouncement of the Apex Court),aged about 13/14 years, daughter of Shyam Lal, had gone to the fields to ease herself at about 7.00 pm. When she was returning to her house, Ram Singh, Rajesh and Jitender @ Phirya, accused met her on the way. Rajesh alias Phirya and Ram Singh, accused, caught hold her of her hands. Jitender alias Phirya gagged her mouth and she was forcibly taken to a place behind Devi Mandir. The accused threatened to kill her, if she raised alarm. The prosecutrix was taken to the Bajra (Fodder) field. Rajesh, accused broke the string of trouser (salwar) of the prosecutrix and committed rape with her. Thereafter, Ram Singh and Jitender alias Phirya, accused, committed rape with her. All the accused confined the prosecutrix, at that place, and had been continuously committing rape with her one by one. At about 5.00 AM, on 25.09.1992, the accused left the prosecutrix near Shanti Cinema, Kalanaur, and ran away. The prosecutrix came to her house, and narrated the occurrence, to her mother Phulpati. At that time, Shyam Lal, and Bobby, father and brother respectively of the prosecutrix, were not available in the house. The father of the prosecutrix had gone to village Bahman, in connection with some family affairs, whereas Bobby, her brother, was away to Bhiwani. Her father Shyam Lal came back on 26.09.1992, to his house, from village Bahmanwas. He was told by the prosecutrix and her mother about the occurrence. Thereafter, the matter was reported to the Police. The statement Ex. PF of the prosecutrix was recorded, which was signed by her. Gurbachan Singh, Sub Inspector/Station House Officer appended his endorsement Ex.PF/1,thereon,and the FIR Ex.PF/2 was registered. The prosecutrix was got medico legally examined. Thereafter, the Investigating Officer went to the place of occurrence, and prepared the site plan Ex. PU. After the medico legal examination of the prosecutrix, the doctor handed over to the Police a sealed parcel, containing her clothes and an envelope alongwith another sealed parcel of swabs. The same were taken into possession, vide recovery memo Ex. PV. The accused were arrested on 25.09.1992, and were got medico legally examined. School leaving certificate Ex. PT of the prosecutrix showing her date of birth as 18.07.1979, was taken into possession by the Police. Another certificate Ex. PG mentioning the date of birth of the prosecutrix, as 18.07.1979, and issued by the Registrar, Births and Deaths, Kalanaur (Rohtak), was also taken into possession. Scaled site plan Ex. PA, was got prepared, from Satpal Singh, Patwari. Report of the Forensic Science Laboratory was obtained. After the completion of investigation, the accused were challenged.

3. On their appearance, in the Committing Court, the accused were supplied the copies of all the documents, relied upon by the prosecution. After the case was received by commitment, in the Court of Sessions, charge under Sections 366 and 376(g) of the Indian Penal Code, was framed against the accused, to which they pleaded not guilty, and claimed judicial trial.

4. The prosecution, in support of its case, examined Sat Pal Singh, Patwari, (PW-1), Dr. Usha Rani, Medical Officer, CHC Dabawali, (PW-2), prosecutrix, (PW-3), Som Nath, Clerk, Municipal Committee, Kalanaur,(PW-4), Sham Lal, father of the prosecutrix, (PW-5), Dr. L.L. Bundella, Medical Officer, PHC, Pakasma, (PW-6), Dr. M.K. Bishnoi, SMO, Civil Hospital, Rohtak, (PW-7), Shrimati Vidayawati, Headmistress, Government Primary School, Kalanaur, (PW-8), and Gurbachan Singh, Inspector, the Investigating Officer, (PW-9). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence.

5. The statements of the accused, u/s 313 Cr. P.C., were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence.

6. Rajesh, accused, in his statement u/s 313 of the Code of Criminal Procedure, stated that he was falsely implicated. It was further stated by him that the prosecutrix is a girl of bad character and had relations with many other boys. It was further stated by him that about seven days prior to the alleged occurrence, an altercation between the mother of the prosecutrix and Jitender, his co-accused, took place. It was further stated by him that he did not know the prosecutrix prior to the alleged occurrence. It was further stated by him that at the instance of his enemies, he and his co- accused were involved in this case.

7. Jitender, accused, in his statement u/s 313 of the Code of Criminal Procedure, also took up the same plea, as was taken up by Rajesh, accused, in his statement, u/s 313 of the Code of Criminal Procedure. In addition, it was stated by him that there was some altercation, between his mother, and the mother of the prosecutrix, on the issue that boys used to visit the house of the prosecutrix, in the absence of her father. It was further stated that, in that process, an altercation took place, and they grappled with each other. It was further stated by him that when the father of the prosecutrix returned, he quarreled with them. It was further stated by him that the father of the prosecutrix also threatened him that he would be taught a lesson. It was further stated by him, that he neither took the prosecutrix, to the fields of Bajra, nor committed rape with her. It was further stated by him, that the prosecutrix was more than 16 years of age on 24.09.1992. They, however, did not lead any evidence, in defence.

8. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused (now appellants), as stated hereinbefore.

9. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the appellants.

10. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.

11. The Counsel for the appellants, at the very outset, submitted that, the prosecutrix was more than 16 years of age, at the time of the alleged occurrence, but the trial Court was wrong in coming to the conclusion, that she was below 16 years of age. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Som Nath, Clerk, Municipal Committee, Kalanaur, (PW-4), stated that the name of the prosecutrix was entered at Sr. No. 85 dated 30.07.1979. It was further stated by him that, as per record, the date of birth of the prosecutrix, was 18.07.1979. It was further stated by him that Phulpati is the mother of the prosecutrix, as per the record. He also proved the certificate Ex. PG. Not only this, even in the school admission record, the date of birth of the prosecutrix, as stated by Smt. Vidayawati, Headmistress, Government, Primary School, Kalanaur, (PW-8), was recorded as 18.07.1979. She also proved the certificate Ex. PT, issued in this regard. The birth certificate issued by the Municipal Committee, in relation to the prosecutrix, was prepared, in the due discharge of official duties, by an official of the said Committee. Presumption of correctness is, thus, attached to the same. As stated above, the same date of birth of the prosecutrix, was recorded, in the admission record of the School. In the face of the documentary evidence, to the effect, that the date of birth of the prosecutrix was 18.07.1979, it could not be said that she was above 16 years of age. Her age was only 13 years and 02 months, on the day of occurrence. The submission of the Counsel for the appellants, being without merit, must fail and the same stands rejected.

12. It was next submitted by the Counsel for the appellants, that the entire story of the prosecution, was most improbable and unnatural. He further submitted that according to the prosecution case, the prosecutrix was dragged 2 to 3 Kms. He further submitted that the alleged occurrence took place, in the Bajra field. He further submitted that it was strange that no injury was found on the person of the prosecutrix. He further submitted that had the occurrence taken place, in the manner, deposed to by the prosecutrix, and the other witnesses, then there were bound to be injuries, on the person of the prosecutrix. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Dr. Usha Rani, Medical Officer, CHC, Dabawali, (PW-1), medico legally examined the prosecutrix on 25.09.1992 at about 2.45 PM and found the following injuries, on her person:-

1.There was a 3 cm bruise of reddish-pink colour present on inner and upper quadrant of left breast.

2.There were bruises present on in an area of 3 cm on upper and upper quadrant of left breast.

3.There were bruises in an area of 2 cm on upper and outer quadrant of right breast.

12-A. The prosecutrix, while appearing as PW-3, stated during the course of examination-in-chief that the accused gagged her mouth, and took her from Devi Mandir to the field of Bajra. She further stated that, in that process, her shirt was torn. It was further stated by her that her mouth was facing towards the ground when she was dragged. It was, on account of this reason, that the aforesaid injuries were found, on the person of the prosecutrix. The submission of the Counsel for the appellants, that no injuries, were found, on the person of the prosecutrix, on account of her dragging, is belied by the medical evidence. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.

13. It was next submitted by the Counsel for the appellants, that from the evidence on record, it was not proved that rape was committed with the prosecutrix, by the accused. He further submitted that according to the prosecutrix, each accused committed rape with her thrice. He further submitted that it was strange that no fresh bleeding, from the vagina, was seen, when she was medico legally examined on 25.09.1992. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The prosecutrix, when appeared, in the Court, as, PW-3, in clear-cut terms, stated that when she was returning from the fields, after easing her out, at about 7.00 PM, the accused met her, on the way, and caught hold of her hands. It was further stated by her that one of the accused gagged her mouth and she was forcibly taken behind Devi Mandi. She also stated that the accused threatened her that if she raised alarm, they would kill her. Thereafter, she was taken to the fields of Bajra, where the accused committed rape with her, one by one. She further stated that the accused confined her, at that place, and committed rape continuously with her. It was further stated by her that at about 5.00 AM on 25.09.1992 she was left by the accused at Shanti Cinema, Kalanaur. She came to her house, and told about the occurrence, to her mother, who was present there. The statement of the prosecutrix was corroborated through medical evidence of Dr. Usha Rani, Medical Officer, (PW-2), who in clear cut terms, stated that the aforesaid three injuries were found on her person. She also stated, during the course of cross-examination that perennial muscle were congested. It was further stated by her during the course of cross-examination that rupture of hymen was recent. She, however, clarified that the rupture was not old. She further stated during the course of cross-examination, that congestion means, injury to muscles. She also stated that the possibility of commission of rape with the prosecutrix, could not be ruled out. Still further corroboration to the statement of the prosecutrix, was provided through Ex. PE, report of the Forensic Science Laboratory, according to which, human semen was detected on the underwear, trouser (Salwar), and vaginal swab. Since the accused committed rape with the prosecutrix, human semen was detected on the vaginal swab, trouser(salwar) and underwear of the prosecutrix. The occurrence took place on 24.09.1992 and the prosecutrix was left by the accused at about 5.00 AM, on 25.09.1992. She was medico legally examined on 25.09.1992 at about 2.40 PM. This all proved that sexual intercourse had been committed with the prosecutrix recently. The mere fact that there was no fresh bleeding, from the vagina of the prosecutrix, at the time of her medicolegal examination, did not mean that no rape was committed with her, by the accused, especially in view of the specific opinion of the doctor that rupture of human was recent and perennial muscle were congested. There was no reason, on the part of the prosecutrix, to depose falsely. Before making her statement, she must have thought a number of times, as she knew, that if the allegation of rape were found to be false, she would be looked down upon in the society. She being an unmarried girl, very well knew that if the allegations of rape were found to be false, chances of her marriage, would certainly become bleak. Normally no young girl would stake her honour, until and unless, rape has actually been committed by the accused. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail and the same stands rejected.

14. It was next submitted by the Counsel for the appellants, that at the time of the alleged occurrence, both the appellants, were below 18 years of age and, as such, they could not be awarded sentence by the Court of Sessions, being juveniles in conflict with law. The submission of the counsel for the appellants, in this regard, appears to be correct. Dr. L.L. Bundella, Medical Officer, who appeared as, PW-6, medico legally examined Jitender son of Beg Raj and Rajesh son of Lal Chand. He stated that Jitender son of Beg Raj, was aged 16 years, and Rajesh son of Lal Chand, was aged 17 years on 25.09.1992, when he medico legally examined them. Dr. M.K. Bishnoi, who appeared as, PW-7, conducted ossification test of Rajesh son of Lal Chand, and Jitender son of Beg Raj on 25.09.1992. He stated that according to his opinion, the age of the accused was between 17 to 19 years. During the course of cross-examination, it was stated by him, that the ossification test was not the surest test, but it was only an approximate test. It was further stated by him, during the course of cross-examination, that the possibility of variation of age of two years on either side, could not be ruled out. It is settled principle of law, that if two views are possible from the evidence, on record, then the view which is favorable to the accused, is required to be taken. Even if, the statement of Dr. M.K. Bishnoi, Senior Medical Officer, Civil Hospital, Rohtak, (PW-7), is taken as correct, and the concession of two years of age is given on the lower side, the age of the accused was either 17 years or 15 years as on 25.09.1992. From whatever angle the case may be seen, it can be said that at the time of occurrence, the age of the accused (now appellants) was less than 18 years. According to Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000, a juvenile or child means a person who has not completed eighteenth year of age. According to Section 2(1) of the Act, "Juvenile in conflict with law" means a juvenile, who is alleged to have committed an offence. Section 20 of the Juvenile Justice ( Care and Protection of Children ), Act 2000, which came into force on 01.04.20001 reads as under:-

20. Special provision in respect of pending case.- 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. 14.Amendment of section 20. -In section 20 of the principal Act, the following proviso and explanation shall be inserted namely:

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 (i) 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."

In view of the explanation added to Section 20 of the Juvenile Justice (Care and Protection of Children), Act, 2000 by amendment, which became operative W.E.F. 20.08.2006, the benefit to all offenders who were below 18 years of age, on the date of occurrence, and whose claims were pending before the trial or the appellate Courts is required to be extended. It means that the accused being below 18 years of age, on the date of occurrence were entitled to the benefit conferred by the explanation to Section 20 of the Act ibid. Similar principle of law, was laid down in Balu @ Bakthvatchalu v. State of Tamilnadu, 2008 (2) RCR (Crl) 164 (SC) : [2008 (2) AICLR (S.C) 340] and Sandeep v. State of Haryana, 2009 (1) RCR (Cri) 392, a case decided a Division Bench of this Court. The appellants are, therefore, entitled to be extended the benefit of the provisions of 20 of the Act,(as amended up to date). They being juveniles, in conflict with law, sentence could not be awarded, by the trial Court, to them. Their conviction is liable to be upheld. The sentence awarded to them, by the trial Court, deserves to be set aside.

15. No other point, was urged, by the Counsel for the parties.

16. For the reasons, recorded above, the appeal is partly accepted. The judgment of conviction dated 21.03.1994, rendered by the trial Court, is up- held. The order of sentence dated 24.03.1994, rendered by the trial Court is set-aside. Since both the appellants, are on bail, they are directed to appear before the Juvenile Justice Board, Rohtak, presided over by the Chief Judicial Magistrate, Rohtak, on 24.04.2009 at 10.00 AM, which shall pass orders, in respect of them, in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000.

17. The Registry is directed to comply with the judgment forthwith, by sending the certified copies thereof, to the quarters concerned immediately, so as to reach them before 24.04.2009, positively.