IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 406 of 1995 Date of Decision : April 30, 2010 State of H.P. …Appellant. Versus: Bharat Bhushan …Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellant: Mr. Vivek Thakur, Addl. A. G. with Mr. Rajesh Mandhotra, Dy. A.G. For the respondent : Mr. Ajay Kochhar, Advocate Deepak Gupta, J. (Oral) We have heard Mr. Ajay Kochhar, learned counsel for the accused on the quantum of sentence. 2. A submission has been made by Mr. Ajay Kochhar, learned counsel for the accused that the convict was only 16 years and 4 months old at the time when the offence was committed and therefore, the provisions of Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 are applicable and this Court instead of passing sentence on the accused should refer the matter to the Juvenile Justice Board for taking appropriate action. Mr. Kochhar places reliance upon the 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 judgments of the Apex Court in Opendera Kumar vs. State of Bihar (2005) 3 SCC 592 and Bhola Bhagat vs. State of Bihar 1997(8) SCC 720, in support of his contention. 3. On the other hand, Mr. Vivek Thakur, learned Addl. Advocate General has drawn our attention to a Constitution Bench judgment of the Apex Court in Pratap Singh vs. State of Jharkhand & Anr. 2005(3) SCC 551, wherein the Apex Court held as follows:- “34. This rule also indicates that the intention of the legislature was that the provisions of the 2000 Act were to apply to pending cases provided, on 1-4- 2001 i.e. the date on which the 2000 Act came into force, the person was a "juvenile" within the meaning of the term as defined in the 2000 Act i.e. he/she had not crossed 18 years of age.” 4. Reference has also been made to the judgment of the Apex Court in Jameel vs. State of Maharashtra (2007) 11 SCC 420, wherein the Apex Court held as follows: “9. It was furthermore submitted that although the age of the appellant on the date of the occurrence was more than sixteen years but below eighteen years, having regard to the provision of the Juvenile Justice (Care and Protection of Children) Act, 2000, (for short, 'the 2000 Act), it was imperative on the part of the court to follow the procedures laid down therein. x x x x x x x x x x x x x x x x x x x x x x x x x 13. So far as the submission of the learned counsel in regard to the applicability of the 2000 Act, is concerned, it is not in dispute that the appellant on the date of occurrence had completed sixteen years of age. The offence having been committed on 16.12.1989, the 2000 Act has no application. In terms of the Juvenile Justice Act, 1986, 'juvenile' was defined 3 to mean "a boy who had not attained the age of sixteen years or a girl who had attained the age of eighteen years". x x x x x x x x x x x x x x x x x x x x x x x x [ 15. The appellant was above eighteen years of age on 01.04.2001. The 2000, therefore, cannot have any application whatsoever in the instant case.” 5. To the similar effect is the judgment of the Apex Court in Ranjit Singh vs. State of Haryana (2008) 9 SCC 453, where relying upon the judgment in Jameel’s case (supra), the contention that the petitioner was entitled to the benefits of the Juvenile Justice (Care and Protection of Children) Act, 2000, since he was below 18 years as the date of commission of offence was rejected. 6. In view of the law laid down by the Apex Court we are clearly of the opinion that Section 20 is not applicable in this case since admittedly the accused was over 16 years of age at the time of commission of the offence i.e. 22.6.1993 and over 18 years of age on 1.4.2001, the date when the Act was brought into force. 7. We may note that we have convicted the accused Bharat Bhushan of having committed an offence punishable under Section 376(2)(f) IPC for which the minimum imprisonment prescribed is 10 years but which may extend for life. However the proviso to this Section provides that the Court may for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than 10 years. This leaves no manner of doubt that a sentence of imprisonment has to be 4 passed. The sentence may be less than 10 years but incarceration in Jail is mandatory in the case of conviction under Section 376(2)(f) IPC. 8. Mr. Ajay Kochhar submits that the convict was only 16 years at the time when he committed the offence. More than 17 years have elapsed. He submits that in the meantime, the accused got married and now has three children, the youngest of whom is only 5 years old. He also submits that the accused is the sole bread earner in the family since his elder brother committed suicide and, therefore, a lenient view be taken. 9. We are aware that there has been long delay in deciding this matter which is not attributable to the accused but the delay is on account of the fault in the judicial system itself. The appeal by the State was filed in the year 1995 and unfortunately come up for hearing only in the year 2010. The accused, therefore, is justified in claiming some leniency on account of this inordinate delay of over 15 years. During this period the factual position must have changed a lot. If the appeal had been heard earlier and the accused had been convicted earlier he may not have got married and may not have had children. We are also aware that when we pass sentence on the accused we are virtually even sentencing his wife and his children who have not committed any offence whatsoever. They shall also suffer because of the delay in the delivery of justice. Therefore, we are of the considered view that the accused has made out a case for award of punishment less than the minimum prescribed under the Act. 5 10. Having said so, we cannot be oblivious to the fact that though the accused may have been only about 16 years when he committed the offence, he raped a girl who was less than 12 years old. We have to consider not only the difficulties of the accused and his family but also the sentiments of the victim and her family. The victim can never be compensated for the trauma which she has gone through. No amount of compensation and no amount of punishment to the accused can compensate her adequately. Therefore, we have to balance both the factors in favour of the accused and also the feelings of the victim. 11. Keeping all the factors into consideration, we are of the considered view that the ends of justice will be met in case we award sentence of 5 years rigorous imprisonment to the accused. The accused is also directed to pay a fine of Rs.50,000/- which shall be paid to the victim. In case of default of payment of fine, the accused shall undergo further rigorous imprisonment for a period of one year. The accused is directed to surrender within one month from today. It goes without saying that the period of detention already undergone shall be set off against the sentence awarded. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. April 30, 2010. (rana)