IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 570 of 1999 with Cr. Appeal No. 2 of 2000 Date of decision: 16.09.2010 _________________________________________________________ In both the appeals: The State of H.P. .....Appellant. Versus Karan Singh. .....Respondent. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? __________________________________________________________ For the appellant: Mr. Rajinder Dogra, Additional Advocate General. For the respondent: Mr. J.L. Bhardwaj, Advocate. R.B. Misra, J (Oral). The Criminal Appeal No. 570 of 1999, State of H.P. vs. Karan Singh, has been preferred under Section 377 Cr.P.C. in reference to order dated 01.09.1999, passed by learned Sessions Judge, Sirmaur District at Nahan, in Sessions Trial No. 01-ST/7 of 1999, convicting the accused for the offence under Section 376 read with Section 511 of the Indian Penal Code and acquitting the accused for the offence under Section 376 of the Indian Penal Code. Prayer has been made to enhance the sentence awarded for the offence under Section 376 read with Section 511 of the Indian Penal Code, whereas Criminal Appeal 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... No. 2 of 2000 has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 01.09.1999, passed by the learned Sessions Judge, Sirmaur District at Nahan, in Sessions Trial No. 01-ST/7 of 1999, acquitting the accused under Section 376 of the Indian Penal Code in reference to FIR No. 155 of of 1998 dated 10.04.1998. 2. In order to adjudicate both the criminal appeals, it is necessary to give factual background of the case. As per prosecution case, on 10.04.1998, at about 2:30 p.m., accused took the victim- prosecutrix (name withheld) to a 'Khala' near the bushes and gave 'laddus' to her to eat, thereafter, the accused-respondent sexually assaulted her and when the victim-prosecutrix started weeping, out of pain, he left her there. The victim-prosecutrix put on her 'pyjama' and came home weeping. The victim-prosecutrix narrated the incident to her mother, Smt. Reena Devi. Accordingly, case FIR No. 155 of 1998 was lodged and after completion of investigation, accused-respondent was charged for the offence under Section 376 of the Indian Penal Code. The case was committed to the Session Court. 3. In order to prove its case, prosecution examined as many as eight witnesses, whereas, accused through their statements under Section 313 Cr.P.C. denied the prosecution case. 4. The prosecution examined PW-1 Dr. Abhitab Jain, PW-2Dr. (Mrs.) Mangla, PW-3 Charanjit Singh, PW-4 Khazan Singh, PW-5 Smt. Reena Devi, PW-6 victim-prosecutrix, PW-7 Dr. Manveen ...3... Kaur and PW-8 Inspector B.S. Thakur. After examining the prosecution witnesses and the material on record, we notice that PW-1 Dr. Abhitab Jain had medically examined the accused-respondent on 10.04.1998 and found him capable of performing sexual intercourse, however, he had not found any injuries on his private part. 5. PW-2 Dr. (Mrs.) Mangla had examined the victim- prosecutrix to determine her age and after conducting the medical examination, she assessed the victim-prosecutrix below nine year. In cross-examination she has admitted that she has not noticed any injury on the private parts of the victim-prosecutrix and neither noticed any injury nor any definite opinion was given about the sexual assault. 6. PW-3 Charanjit Singh has stated that on 10.04.1998, at about 2 p.m., the accused-respondent left the shop and went to answer the call of nature and had come back between 1 or 1½ hours later. At that time, accused-respondent told him that he was not feeling well and went to his room to take rest. PW-3 has further stated that at about 2:30 or 2:45 p.m., Khazan Singh and Reena Devi gave beatings to the accused-respondent telling that he had done bura kaam with their daughter. In cross-examination, PW-3 has stated that Kazan Singh, the father of the victim-prosecutrix had been taking the consumer articles from him on credit. Therefore, sometimes, he used to send the accused-respondent to collect the money. On one occasion, there had been an altercation between the accused-respondent and said Khazan Singh threatened the accused-respondent that he will teach him a lesson for coming him to collect the money instead of ...4... Charanjit Singh. 7. PW-4 Khazan Singh, father of the victim-prosecutrix and PW-5 Smt. Reena Devi, mother of the victim-prosecutrix, have stated that Khazan Singh was called from the Plywood factory, where he was working, and the victim-prosecutrix apprised them that the accused- respondent had done bura kaam with her. Therefore, she was taken to the police station, where FIR was lodged. In the cross-examination, PW-5 Reena Devi has admitted that the victim-prosecutrix was not wearing the underwear and she was wearing only pyjama. PW-4 and PW-5 have admitted that there was no blood stains on the pyjama. PW-5 though stated that there was blood on the private part of the victim-prosecutrix, but Khazan Singh, father of the victim-prosecutrix, has denied this fact. However, both PW-4 and PW-5 have stated that accused had done bura kaam with their daughter. 8. PW-6, the victim-prosecutrix, aged about 7 years at the time of examination. She stated that accused-respondent took her near the bushes, gave her laddus to eat and did gandi baat with her. 9. PW-7 Dr. Manveen Kaur, medically examined the victim- prosecutrix on 10.04.1998 and noticed redness and swelling in the private part of the victim-prosecutrix, however, no injury and bleeding was noticed. Neither any sperm, dead or alive, was found in the private part of the victim-prosecutrix, however, possibility of sexual assault was not ruled out. She has also opined that since redness was present in the labia and hymen membrane was absent, so penetration could be possible. ...5... 10. PW-8, Inspector B.S. Thakur, the then SHO Police Station Paonta Sahib, has investigated the case and sent the challan. 11. From the scrutiny of the prosecution witnesses and the material on record, undisputedly the victim-prosecutrix was minor, aged about 6-7 years, and the accused was 18 years of age, therefore, there could not be any question of consent of victim-prosecutrix. Defence has endeavoured to indicate that the accused-respondent was falsely implicated. Nothing very specific has been emanating from the testimony of the victim-prosecutrix. She has only stated that accused- respondent opened her pyjama and laid her down and did bura kaam. However, PW-7 Dr. Manveen Kaur, has also not definitely indicated that the victim-prosecutrix (PW-6) was actually sexually assaulted. In the present case, the testimony of the victim-prosecutrix cannot be ignored and in the facts and circumstances, the learned Sessions Judge has rightly arrived at the finding that the accused-respondent cannot be convicted for the offence under Section 376 of the Indian Penal Code, however, in view of the testimony of the prosecution witnesses and the material on record, the offence under Section 376 read with Section 511 of the Indian Penal Code said to have been proved beyond reasonable doubt. In our view also the accused-respondent is liable for the offence under Section 376 read with Section 511 of the Indian Penal Code. 12. While recording the statement of the accused-respondent under Section 207 Cr.P.C., when he was supplied the copies of challan etc., the age of the accused-respondent was recorded as 17 years. ...6... Similarly, at the time of framing of charge, his age is recorded as 17 years and while recording his statement under Section 313 Cr.P.C. the age is given as 18 years. However, in certificate regarding identity of the accused-respondent, his age is recorded as 18 years. 13. The above documents reveal that in any case, the accused- respondent was above 16 years and less than 18 years of age at the time of the alleged incident, therefore, in view of the decision of Hon'ble Supreme Court in (2010) 5 Supreme Court Cases 344, Dharambir vs. State (NCT of Delhi) and another, the accused- respondent shall be treated to be juvenile under Juvenile Justice Act, 1986, even at the date of incident. The accused-respondent was sentenced to undergo rigorous imprisonment for 15 months and to pay a fine of Rs. 500/-. In the event of non-payment of fine, he shall further undergo rigorous imprisonment for one month vide impugned judgment dated 01.09.1999 of learned Sessions Judge. 14. In our considered view also, the prosecution cannot be said to have proved its case beyond reasonable doubt in respect of the offence under Section 376 of the Indian Penal Code, as such, vide judgment dated 01.09.1999, the learned Sessions Judge has rightly acquitted the accused-respondent under Section 376 of the Indian Penal Code and has rightly convicted the accused-respondent for the offence under Section 376 read with Section 511 of the Indian Penal Code. Therefore, the Criminal Appeal No. 2 of 2000, being devoid of any merit, is dismissed, however, matter regarding sentence in Criminal Appeal No. 570 of 1999, it is noticed that the accused- ...7... respondent was juvenile on the date of incident and he was convicted for the offence under Section 376 read with Section 511 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for 15 months and to pay a fine of Rs. 500/-, which he has already undergone. 15. In the peculiar facts and circumstances, we are also of the considered view that the accused-respondent is required to be dealt with under the provisions of Juvenile Justice Act, 1986, as amended in 2000 as Juvenile Justice (Case and Protection of Children) Act, 2000. In view of the observations made in paragraph 19 of Dharambir vs. State (NCT of Delhi) and another (supra), which read as below: “19. In the instant case, as per the information furnished to us, the appellant has undergone an actual period of sentence of 2 years 4 months and 4 days and is now aged about thirty-five years. We feel that, keeping in view the age of the appellant, it may not be conducive to the environment in the special home and to the interest of other juveniles housed in the special home, to refer him to the Board for passing orders for sending the appellant to a special home or for keeping him at some other place of safety for the remaining period of less than eight months, the maximum period for which he can now be kept in either of the two places.” 16. Since the accused-respondent was juvenile at the time of the alleged incident, severest order that can be passed against him and to direct him to be sent to a special home for a period of three years. ...8... However, since by now he is already major and is about 29 years of age, no fruitful purpose would be served to send him to special home for a period of three years, more so, when he had already suffered imprisonment of 15 months under the impugned judgment. Apart from that, it shall also not be in the interest of juvenile inmates of the special home that a grown up male person is sent to the special home and is allowed to mix with them freely. 17. With the above observations, both the appeals shall stand disposed of in the above terms. (R.B. Misra) Judge (V.K. Sharma) Judge 16th September, 2010 (virender)