B.K.MISHRA,J. CRA.NO.163 OF 2001 (Decided on. 08.09.2011) ALOK @ JITENDRA PANI ……Appellant .Vrs. STATE OF ORISSA ……Respondent JUVENILE JUSTICE (CARE & PROTECTION OF CHILDREN) ACT, 2000 (ACT NO. 56 OF 2000 ) – Ss.15 (g), 64. For Appellant - M/s. D.Panda & Associates For Respondent - Addl. Govt. Advocate B.K. MISRA, J. This appeal is directed against the judgment and order of conviction passed by the learned Assistant Sessions Judge-cum-Chief Judicial Magistrate in S.T. Case No.132-232 of 2000. By virtue of the said judgment the present appellant was convicted under Sections 448 and 376 of the Indian Penal Code (for short, ‘I.P.C.’). The appellant was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1000/- in default to undergo further rigorous imprisonment for six months for the offence under Section 376 of the I.P.C. Besides that the appellant while being convicted for the offence under Section 448 of the I.P.C. was sentenced to undergo rigorous imprisonment for six months. The Court directed the substantive sentences to run concurrently. 2. The case of the prosecution is that on 16.5.2000 at about 6.30 in the evening the present appellant had come to the house of Debendranath Pani (P.W.9), who happens to be elder brother of the informant Srikanta Pani (P.W.3). It is alleged that the appellant on the pretext of asking for a book entered into the house of P.W.9 and taking advantage that the prosecutrix was alone in the house ravished her by gagging her. It is alleged that at the time of occurrence the mother of the victim had gone to wash the clothing and when returned to the house heard the cries of her daughter and when she entered inside her house found the appellant after leaving P.W.1 standing in a corner of the house and at that time the victim girl was lying naked and bleeding. The victim narrated the facts before her mother. The informant (P.W.3) after ascertaining the facts from the prosecutrix (P.W.1) presented a written report i.e. Ext.1 before the O.I.C. Raibania Police Station. Police on receipt of the F.I.R. Ext.1 registered Raibania P.S. Case No.20 of 2000 under Sections 448 and 376 of the I.P.C. and investigation was taken up. On completion of the investigation, charge sheet was placed against the appellant to stand his trial. 3. The plea of the appellant was of complete denial of the occurrence and it is his further plea that the father of the victim had taken money from his father for which there was a village meeting and for that he has been falsely entangled in the case. 4. The prosecution in order to bring home the guilt of the appellant examined 11 witnesses in all and the defence examined one witness. 5. Learned trial court on analyzing the evidence on record came to the conclusion that the prosecution was able to establish its case against the appellant and therefore recorded the order of conviction and passed the impugned sentences. Learned counsel appearing for the appellant in course of his argument raised the plea of juvenility and contended that even if the plea of juvenility was not raised before the courts below but such a claim of juvenility can be raised before any Court at any stage even after final disposal of the case and the same shall be determined in terms of the provisions contained in the Juvenile Justice (Care and Protection of Children) Act, 2000 ( for short the ‘J.J.Act’) as amended in 2006 and in particular within the meaning of Section 7-A which was introduced to the parent Act by the Amending Act, 2006. It was also contended that since the appellant was a juvenile when the offence was committed he cannot be sentenced to undergo any sentence rather he should be released in view of the provisions of Sections 15 and 64 of the J.J.Act read with Rule 98 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short the ‘J.J.Rules’). In support of such contention the learned counsel for the appellant placed reliance in two judgments of the Apex Court as reported in AIR 2010 SCW 2881 Mohan Mali & another –v- State of M.P. and (2009) 13 SCC 211 Hari Ram –v- State of Rajasthan and another. Besides raising the aforesaid question of law it was also very strenuously urged by the learned counsel for the appellant that the learned court below should not have placed reliance on the testimony of prosecutrix which lacks corroboration. Besides that since there was no injury on the private part of the appellant the question of ravishing a minor girl should have been disbelieved by the learned trial court. 6. Learned counsel appearing for the State while agreeing with the learned counsel for the appellant that the question of juvenility can be raised at any stage, but contended that in view of the evidence on record the order of conviction cannot be faulted and sentences recorded need not be disturbed. 7. I have gone through the evidence of the witnesses on record and also perused the impugned judgment in this case. The victim who has been examined as P.W.1 has categorically stated that on 16.5.2000 the accused had come to their house to collect book from his brother Dasa @ Babu but since her brother was not present then her mother told the appellant about non-availability of the book and also stated that her son was not present in the house and so saying proceeded to the ‘Gadia’ (Pond) to wash the cloth and thereafter the appellant called her and after gagging her mouth removed her pant and top for which she became naked and made her to lie in the kitchen and forcibly inserted his penis into her vagina for which there was bleeding from her private part for which she cried and raised hullah. It is also her further evidence that the accused had caught hold of her hand. It is also the evidence of P.W.1 that on hearing her cries when her mother came she found the appellant trying to wipe blood with a piece of cloth. P.W.1 further deposed that she narrated the incident to her mother and the appellant was confined in a room. P.W.1 further deposed that she told the incident to her uncle when he came around 9 P.M. and the matter was reported to police. P.W.1 deposed that Police sent her for medical examination and seized her pant and top and also collected the blood stained earth and cloth used for cleaning blood. Though P.W.1 has been examined and cross-examined at length but nothing could be elicited from her mouth to 2 disbelieve her evidence. On the other hand she remained firm in stating in her cross- examination that the appellant immediately caught hold of her when her mother left the house towards the ‘Gadia’, removed her dress and cohabitated with her for 5 to 10 minutes. This evidence of P.W.1 about the injury on her private part gets overwhelming corroboration from the evidence of P.W.8, the Medical Officer who had examined her (the victim) on 17.5.2000. P.W.8 deposed that there was a recent injury in the hymen at 5-O’ clock position and she proved her report as Ext.5. P.W.8 also opined the age of the victim to be within 11 to 14 years. Ext.5 shows that there was sign and symptom of recent sexual intercourse. There was bleeding injury on the hymen with tenderness. Thus, the evidence of P.W.8 and the injury report Ext.5 lends all material corroboration to the evidence of P.W.1 that she was ravished by the appellant. P.W.2 is the mother of the victim. P.W.2 also deposed that on 16.5.2000 evening the appellant had come to their house to take a book of his son Dasa. But at that time her son Dasa was not present and she told the appellant about non-availability of her son and the book and further informed the appellant that he can come after return of her son to take the book and so saying she proceeded to a ‘Gadia’ for washing her cloth and at that time the appellant was sitting on a ‘Khatia’ (Charpoy) which was lying in front of their house. P.W.2 also deposed that on hearing cry when she returned to house and proceeded towards kitchen found the victim lying naked and the appellant was washing the vagina of her daughter with a piece of cloth and the appellant was also found covering his penis with a piece of cloth. P.W.2 further deposed that she caught hold of the appellant and confined him in a room. P.W.2 deposed that her daughter told her that the appellant brought to her to the kitchen and told that he would give Rs.5/- per day and also she saw bleeding from the private part of her daughter. P.W.2 deposed that she informed the incident to her brother-in-law Srikanta and instructed him to go to the Police Station. 8. P.W.3 is the informant, who deposed that on 16.5.2000 around 8.30 P.M., he returned to the house and on being called by her elder sister-in-law he came and saw his niece lying in the kitchen and on hearing the incident that the appellant ravished her, he proceeded to the Police Station and submitted the F.I.R. (Ext.1). P.Ws.4,5,6 & 9 are all post occurrence witnesses and they heard that the appellant had forcibly cohabitated with P.W.1. P.W.11 is the I.O. P.W.7 is the doctor who had examined the appellant on police requisition. P.W.7 deposed that there was no injury on the penis or any other part of the body of the appellant, but he found him capable of having sexual intercourse and he has proved his report as Ext.4. After perusing the entire evidence as laid by the prosecution, I do not find any compelling reason to disbelieve the evidence of P.W.1 the prosecutrix whose evidence not only has remained unshaken in her cross- examination but also gets overwhelming corroboration from the evidence of P.W.8, the doctor, who found the injury on the private part of the victim which was also bleeding and she has also specifically opined that there was sign and symptom of recent sexual intercourse. There is nothing on record to disbelieve the evidence of P.W.1, the prosecutrix. 9. The contention of the learned counsel for the appellant that the case has been foisted against the appellant as the father of the prosecutrix could not repay the loan which he had taken from the father of the appellant and could not execute the ‘Kabala’ (sale deed) and when such demand was made by the father of the appellant, P.W.9 has foisted this case. In support of such plea one witness has been examined as D.W.1 and Ext.B has been pressed into service. But very surprisingly when P.W.9 the father of the 3 prosecutrix was examined and cross-examined in Court Ext.B was never confronted to him and therefore the evidence of D.W.1 and Ext.B cannot make the case of the prosecution unbelievable. The evidence of D.W.1 cannot demolish the foundation of the prosecution case and the evidence of P.W.1. 10. It is needless to mention here that in a number of judicial pronouncements the Apex Court have held that conviction can be based on the solitary testimony of a single witness where such evidence suffers from no infirmity and appears believable and trustworthy. There is nothing on record to disbelieve the evidence of P.W.1 and there is no reason or rhyme for a minor girl to falsely implicate the appellant in this case. In a non permissive society of ours it is hardly believable that a minor girl would be set up by her parent to falsely implicate an innocent man and that too in an heinous offence like rape and thereby putting the reputation of the family and especially the girl at a stake. It is the established position of law that the evidence of the prosecutrix does not need corroboration and where the evidence of prosecutrix inspires confidence and appears reliable it must be acted upon without seeking corroboration of her statement in material particulars. The testimony of the prosecutrix must be appreciated in the background of the entire case. It is observed in umpteen number of cases by the Apex Court :- “The important thing that the Court has to bear in mind is that what is lost by a rape victim is face. The victim loses value as a person. Ours is a conservative society and, therefore, a woman and more so a young unmarried woman will not put her reputation in peril by alleging falsely about forcible sexual assault. In examining the evidence of the prosecutrix the Courts must be alive to the conditions prevalent in the Indian society and must not be swayed by beliefs in other countries. The courts must be sensitive and responsive to the plight of the female victim of sexual assault. Society’s belief and value systems need to be kept uppermost in mind as rape is the worst form of woman’s oppression. A forcible sexual assault brings in humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional scar to a victim and it is, therefore, most unlikely of a woman, and more so by a young woman, roping in somebody falsely in the crime of rape. The stigma that attaches to the victim of rape in Indian society ordinarily rules out the leveling of false accusations. An Indian woman traditionally will not concoct an untruthful story and bring charges of rape for the purpose of blackmail, hatred, spite or revenge.” 11. Thus, in the Indian setting reluctance or refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. It is also observed by the Hon’ble Apex Court in the case of Bharwada Bhoginbhai Hirjibhai –v- State of Gujrat (1983) 3 SCC 217 and has been relied upon by the Apex Court in a recent pronouncement as reported in (2011) 48 OCR (S.C.) 559 State of U.P. –v- Chhoteylal; “In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for 4 corroboration and subject it to relentless and remorseless cross examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focused on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identities of the two worlds are different. The solution of problems cannot therefore be identical……..” “……….Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India made false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because (1) A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition-bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband’s family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross-examination by counsel for the culprit, and the risk of being disbelieved, acts as a deterrent.” In the above touch stone of settled position of law regarding appreciation of evidence of the victim in a case of rape as I have already discussed above, the solitary evidence of P.W.1 establishes the guilt of the appellant and when the victim soon after the occurrence without any loss of time narrated the incident before her mother and 5 uncle, namely P.Ws.2 and 3 and when P.Ws.2 and 3 deposed that they heard from P.W.1 that she was ravished by the appellant the same can be relied upon under Section 6 of the Indian Evidence Act. The learned trial Court has dealt with the matter very vividly and I do not find anything wrong in such appreciation of evidence and therefore, there is nothing to interfere with the said findings of the learned trial Court. 12. Now coming to the plea of the juvenility which has been raised before this Court by the appellant, from the material placed before this Court i.e. the original certificate granted by the Board of Secondary Education, Orissa in respect of the appellant, who passed the H.S.C. Examination from Dinakrushna Panchayat High School, Garhsahi, Balasore in the year, 2000 it is found that the appellant was born on 1st February, 1983. The learned counsel for the appellant also drew my attention to the charge sheet which has been placed against the appellant on completion of the investigation by the Investigating Agency which shows that the Investigating Officer recorded in the charge sheet that the appellant was born in the year, 1982. The most reliable evidence with regard to the date of birth of the appellant would be the date of birth which has been recorded in the certificate granted by the Board of Secondary Education, Orissa wherein it has been mentioned that the appellant was born on 1st February, 1983. According to the case of the prosecution, the occurrence took place on 16.5.2000. By simple calculation, it is seen that when the offence was committed the appellant was 17 years, 3 months and 15 days old and therefore, he had not completed the age of 18 years. 13. The question now arises as to whether a male person who was above 16 years on the date of commission of the offence prior to 1.4.2001, would be entitled to be considered as a juvenile for the said offence if he had not completed the age of 18 years on the said date. In other words, could a person who was not a juvenile within the meaning of 1986 Act when the offence was committed, but had not completed 18 years, be governed by the provisions of the Juvenile Justice Act, 2000 and be declared as a juvenile in relation to the offence alleged to have been committed by him? This question came into consideration before the Constitution Bench of the Hon’ble Apex Court in a case as reported in (2005) 3 SCC 551 Pratap Singh –v- State of Jharkhand and also in the case of Hari Ram –v- State of Rajasthan (2009) 13 SCC 211. By analyzing several decisions the Apex Court have categorically come to the conclusion that in view of the provisions of Section 3 and Section 20 of the Juvenile Justice Act, 2000 and considering the same along with the definition of Juvenile in Section 2(k) of the Juvenile Justice Act, 2000 as contrasted with the definition of a male juvenile in Section 2(h) of the 1986 Act and in view of the majority view in Pratap Singh’s case (supra) the Juvenile Justice Act, 2000 would be applicable to a proceeding in any court/authority initiated under the 1986 Act which is pending when the Juvenile Justice Act, 2000 came into force when the person had not completed 18 years of age as on 1.4.2001. In other words, a male offender who was being proceeded with in any court/authority initiated under the 1986 Act and had not completed the age of 18 years on 1.4.2001, would be governed by the provisions of the Juvenile Justice Act, 2000. It is to be remembered that for the purpose of attracting Section 20 of the Juvenile Justice Act, 2000 it has to be established that (i) on the date of coming into force, the proceedings in which the petitioner was accused was pending; and (ii) on that day he was below the age of 18 years. The unanimous view of the Constitution Bench in Pratap Singh’s case (supra) was that the provisions of the Juvenile Justice Act, 2000 have prospective effect and not retrospective effect except to cover cases where though the male offender was above 16 6 years of age at the time of commission of the offence, he was below 18 years of age as on 1.4.2001. Consequently, the said Act would cover earlier cases only where a person had not completed the age of 18 years on the date of its commencement and not otherwise. 14. The decision of the Pratap Singh case (supra) led to the substitution of Section 2(l) and the introduction of Section 7-A of the Juvenile Justice Act, 2000 which was amended in the year 2006 and the subsequent introduction of Rule 12 in the Juvenile Justice Rules, 2007 and the amendment of Section 20 of the Juvenile Justice Act. The harmonious reading of Section 2(k), 2(l), 7-A and Rule 12 and Section 20 of the Juvenile Justice Act, 2000 as amended in the year 2006 clinches the question which has been raised in this appeal and especially when the case was pending on 1.4.2001 when the Juvenile Justice Act, 2000 came into force. Section 20 of the Juvenile Justice Act, 2000 specially provides for the procedure to be followed in the pending cases and reads as follows:- “20. Special provision in respect of pending cases-Notwithstanding anything contained in this Act, all proceedings