Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.24 of 2000 =========================================================== AGAINST THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 10TH DECEMBER, 1999 PASSED IN SESSIONS TRIAL NO. 268 OF 1998 BY SHRI SHYAM DEO SINGH, SESSIONS JUDGE, NAWADA =========================================================== TENI YADAV SON OF BAJO YADAV RESIDENT OF VILLAGE-HORILLA, P.S. RAJAULI, DISTRICT-NAWADAH .... .... APPELLANT/S VERSUS THE STATE OF BIHAR .... .... RESPONDENT/S =========================================================== APPEARANCE : FOR THE APPELLANT/S : MR. RAKESH KUMAR SINHA, ADVOCATE, AOR NO.00020 MR. SARMOD RANJAN PRASAD MR. SONI SHRIVASTAVA FOR THE RESPONDENT/S : MR. SUJIT KUMAR SINGH, A.P.P. =========================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT Date: 13-09-2012 Sheema Ali Khan, J. This appeal is directed against the judgment and order dated 10th December, 1999 passed in Sessions Trial No. 268 of 1998 whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for ten years under [STATUTE] and to pay a fine of Rs. 5,000/-. 2. There are two questions raised in this criminal appeal which are with respect to assessment of the age of the appellant who has been assessed as about 17 to 18 years by the Medical Board, whereas the Court has proceeded against the appellant not treating him to be a minor vide order dated Patna High Court CR. APP (SJ) No.24 of 2000 dt.13-09-2012 2 18.12.1998. At the relevant time, the juvenile was defined as a child upto 16 years of age. Subsequently, the Juvenile Justice Act was amended in the year 2000 and juvenile has been defined under Section 2(a), which reads as follow:- “(2) Definitions.- In this Act, unless the context otherwise requires,- (a) “advisory board” means a Central or a State advisory board or as district and city level advisory board, as the case may be, constituted under section 62;” (k) As “juvenile” or “child” means a person, who has not completed eighteenth year of age.” 3. As per the report of the Medical Board, the age of the appellant has been assessed in between 17 and 18 years. By judgments delivered by the Supreme Court, the question of juvenility can be raised at any stage of the case, and, as such it is submitted that appellant being below the age of 18 is entitled to the benefit of the Juvenile Justice Act. It has also been held by the Supreme Court that after amendment of the definition of a juvenile, the Court may take into consideration the age of juvenile when it is raised irrespective of the fact that the occurrence took place when a juvenile was defined as a child who has not completed 16 years of age. In the present case, the appellant is Patna High Court CR. APP (SJ) No.24 of 2000 dt.13-09-2012 3 juvenile as per the opinion of the Medical Board. Apparently this fact was taken into consideration by the court below but no order was passed regarding this aspect of the matter, considering at the relevant time, 16 years were on cut of the date for consideration of the plea of Juvenility. 4. In view of the aforesaid facts, the appellant being 17 to 18 years, cannot be sentenced to undergo imprisonment for a period of ten years. The provision under the law with respect to the order that has to be passed regarding a juvenile who has committed an offence is defined under Sub- section 3 of Section 15: “15. Order that may be passed regarding juvenile.- (3) Where an order under clause (d), clause (e) or clause (f) of sub-section (1) is made, the Board may, if it is of opinion that in the interests of the juvenile and of the public, it is expedient so to do, in addition make an order that the juvenile in conflict with law shall remain under the supervision of a probation officer named in the order during such period, not exceeding three years as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the juvenile in conflict with law: Patna High Court CR. APP (SJ) No.24 of 2000 dt.13-09-2012 4 Provided that if at any time afterwards it appears to the Board on receiving a report from the probation officer or otherwise, that the juvenile in conflict with law has not been of good behaviour during the period of supervision or that the fit institution under whose care the juvenile was placed is no longer able or willing to ensure the good behaviour and well-being of the juvenile it may, after making such inquiry as it deems fit, order the juvenile in conflict with law to be sent to a special home.” 5. In the present case the appellant has remained in custody for one year and six months. In the facts and circumstances of this case, I find that the appellant has undergone the sentence which could have been awarded in this case given the facts of the case discussed below. 6. The second issue would be regarding the merits of the case. There is an allegation against the appellant that he has committed rape on a married girl aged about 18 years. In the First Information Report, she alleges that her cousin sister Lalti Devi had witnessed the occurrence. Lalti Devi was aged about 10 years when the occurrence took place. During the trial, Kiran Devi victim girl has stated that no such occurrence had taken place. Accordingly, she has been declared hostile in this case. The father Patna High Court CR. APP (SJ) No.24 of 2000 dt.13-09-2012 5 of the victim girl is a hearsay witness. He has deposed that his daughter was raped which was supported by the niece Lalti Devi. He had also deposed that there was a dispute with regard to irrigation with the appellant. Learned Counsel submits that the police had arrested the appellant from his house on 2.8.1998. It appears that the victim girl had not supported the case and the father of the victim girl due to enmity has set up the case against the appellant

Applicable IPC Section: 376

Statute Text:
Section 376 of the Indian Penal Code. Rape. Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, or with death.