HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. RESERVED Court No. - 27 Case :- CRIMINAL APPEAL No. - 3071 of 2013 Appellant :- Arun @ Bheem Respondent :- State Of U.P. Counsel for Appellant :- Amit Daga,Vinod Kumar Tripathi Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Ranjana Pandya,J.
1. Heard learned counsel for the appellant and learned A.G.A.
2. This criminal appeal has been preferred against the judgment and order dated 29.06.2013, passed by Additional Sessions Judge / Special Judge (SC/ST Act), Meerut, in Sessions Trial No. 114 of 2007 (State of U.P. vs. Arun @ Bheem), registered as Case Crime No. 337 of 2006, under Sections 376, 506, 323, I.P.C. and Section 3(2)(5) SC/ST Act, Police Station Partapur, District Meerut, whereby the appellant has been convicted and sentenced for the offences punishable under Section 376 I.P.C. for 7 years rigorous imprisonment with a fine of Rs. 10,000/- with default stipulation.
3. Brief facts of the prosecution case according to first information report and the prosecution story is that on 09.10.2006, the sister of the informant namely Sunita had gone to the field for bringing fodder. On the way, she met the accused Arun @ Bheem, who put a country made pistol on her temple and used caste relating abusive language. The accused appellant took the victim Sunita to the sugarcane field, where he assaulted and raped her. When the victim raised hue and cry, the mother of the informant, who was following her daughter, came there, at which, the accused appellant also abused the mother of the informant and said that he had raped the victim, thus, the written first information report was lodged at the police station.
4. On the basis of this first information report, chick report was written and relevant entries were made in the G.D., which was proved by the I.O. Prabal Pratap Singh as Exhibit Ka-6. Investigation was entrusted to Prabal Pratap Singh who was examined as PW-5. He copied the first information report in the C.D., recorded the statement of the scribe and the Constable, further recorded the statement of victim and her mother. He inspected the spot at the pointing out of the victim, prepared the site plan and proved it as Exhibit Ka-4. After that, the statements of Babli and Omwati were recorded. Later on, the statement of victim under Section 164 Cr.P.C. was recorded and after the investigation, this witness has submitted the charge sheet against the accused which was proved by him as Exhibit Ka-5.
5. The prosecution examined PW-1, the victim Sunita who is also witness of fact. This witness has proved her statement under Section 164 Cr.P.C. as Exhibit Ka-1. PW-2 is Santar Pal who is the informant and brother of the victim. He has proved the written report. PW-3 is Anaro, the mother of the informant and victim. PW-4 is Dr. Veena Rani, who examined the victim and proved the medical report as Exhibit Ka-3. Thus, the prosecution has examined as many as five witnesses.
6. The statement of the accused was recorded under Section 313 Cr.P.C., in which, he denied the occurrence and stated that he has been falsely implicated due to the village party-bandi with Gaurav. The accused did not adduce any defence witness.
7. After examining the evidence on record and hearing the counsel for the parties, the learned trial court has acquitted the accused for the charges under Sections 506, 323 I.P.C. and Section 3(2)(5) SC/ST Act and convicted the accused under Section 376 I.P.C. Feeling aggrieved, the present appeal has been preferred.
8. The following points were raised during the course of argument:-
The ocular and medical evidence do not support each other, as such, the case does not stand proved against the present appellant.
The witnesses produced by the prosecution are family members and interested witnesses, hence they cannot be relied upon.
The appellant Arun @ Bheem has been declared juvenile on the date of incident, hence he has to be dealt with in accordance with the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000.
(i) The ocular and medical evidence do not support each other, as such, the case does not stand proved against the present appellant :-
As far as the occurrence is concerned, it has taken place on 09.10.2006 at 2 O'clock in the day time, whereas, the report was lodged on the same day. The distance between the police station and the place of occurrence being 6 kms. The first information report is prompt, even otherwise, this point was not taken up as a ground to allow the appeal.
Perusal of the statement of the victim recorded under Section 164 Cr.P.C., shows that she has categorically stated that the accused had raped her. Admittedly, the evidence, recorded under Section 164 Cr.P.C. is only a corroborative piece of evidence and even the court would definitely want to find its corroboration from the statement of the victim recorded before the court.
PW-1, the victim has specifically stated that when she was carrying the fodder on her head and was returning back from the field, on the way, the accused met her and put a country made pistol on her temple, used caste abusive language and took her into the fields of sugarcane, where he raped her. Even in the cross-examination, the evidence of this witness stood un-shaken. PW-2 is Santar Pal, the informant who has not seen the occurrence but in the report, he has reported what was narrated to him by his sister and mother. PW-3 is mother of the informant and the victim who was following the victim back from the fields, has stated that the accused has used caste relating abusive language. On the hue and cry being raised by the victim, this witness reached the spot. The accused was so daring that he told her that he had raped the victim. She has seen the injuries on the body of the victim which are subsequent event, just after the occurrence which was relevant. The statement of Dr. Veena Rani PW-4 corroborates the oral evidence, inasmuch as, this witness has specifically stated that there was slight laceration in the vagina and there was a tear at 6 O'clock position which was bleeding on being touched. She has further stated that fresh bleeding was also present.
A perusal of the medical report Exhibit Ka-3 also reveals that even the doctor has opined that probably intercourse was committed. Thus, the oral and medical evidence are corroborating each other and the trial court has rightly held that as far as Section 376 I.P.C. is concerned, the prosecution has been able to prove the case beyond all reasonable doubts against the accused.
(ii) The witnesses produced by the prosecution are family members and interested witnesses, hence they cannot be relied upon :-
It has been submitted that the witnesses are highly interested and related to the victim who are interested to get the accused convicted.
In State of U.P. vs. Naresh, (2011) 4 SCC 324, the Hon'ble Apex Court after considering the large number of its earlier judgments held as under:-
"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.
Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited."
No doubt PW-2 Santar Pal is informant and the brother of the victim and PW-3 Anaro is mother of the informant and the victim. But I do not think that the court should always look forward for independent witnesses in rape cases. Both these witnesses were the best persons who could hear about the agony of the victim.
In (2006) 4 Supreme Court Cases, 512 (State of A.P. vs. S. Rayappa and others), the Hon'ble Apex Court has held as under:-
"Testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons. On the contrary, invariably the public is reluctant to appear and depose before the court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are a harassed lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy cross-examination. In such a situation, the only natural witness available to the prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously."
It is well settled that the criminal court should not expect a set reaction from the eye witness on seeing an incident like murder and minor contradictions are likely to occur in the statement of truthful witness. The testimony of eye witness should only be rejected if it is so improbable and so inconceivable from any human being pitted in such a situation.
The statement of PW-1 Sunita finds complete corroboration from her statement recorded under Section 164 Cr.P.C. and nothing has been brought on record in the cross-examination of the victim, the scribe PW-2 Santar Pal and her mother PW-3 Anaro to suggest false implication of the accused.
Although, it is not impossible but there are rare chances that the reputation of the family would be put on stake to get the accused convicted. Thus, I conclude that although PW-2 Santar Pal and PW-3 Anaro are related witnesses but the sole testimony of the victim PW-1 Sunita is trust worthy and reliable, hence the factum of PW-2 Santar Pal and PW-3 Anaro being related to PW-1, the victim Sunita does not shatter the prosecution case.
(iii) The appellant Arun @ Bheem has been declared juvenile on the date of incident, hence he has to be dealt with in accordance with the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 :-
Learned counsel for the appellant has submitted that the appellant Arun @ Bheem has declared juvenile by the Juvenile Justice Board, Meerut. He can neither be sent to the children home as presently he is not a minor nor he can be sent to the jail, since at the time of commission of the offence, he was minor. The accused appellant is in jail since 29.06.2013, hence, no useful purpose would be solved in now sending him to jail. It has also been submitted that since the accused was minor at the time of commission of offence, hence, he should be dealt with accordingly.
How the accused has to be dealt with, is now a matter of consideration before this court.
The order that may be passed regarding juvenile has been specified in Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 which reads as under:-
"15. Order that may be passed regarding juvenile- (1) Where a Board is satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the Board may, if it so thinks fit,-
(a) allow the juvenile to go home after advice or admonition following appropriate inquiry against and counselling to the parent or the guardian and the juvenile;
(b) direct the juvenile to participate in group counselling and similar activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money;
(e) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years;
(f) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well-being of the juvenile for any period not exceeding three years;
1[(g) make an order directing the juvenile to be sent to a special home for a period of three years:
Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit.] (2) The Board shall obtain the social investigation report on juvenile either through a probation officer or a recognised voluntary organisation or otherwise, and shall take into consideration the findings of such report before passing an order.
(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: 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.
(4) The Board shall while making a supervision order under sub-section (3), explain to the juvenile and the parent, guardian or other fit person or fit institution, as the case may be, under whose care the juvenile has been placed, the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to the juvenile, the parent, guardian or other fit person or fit institution, as the case may be, the sureties, if any, and the Probation officer."
Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 restricts the period of detention of a juvenile for not exceeding three years.
Counsel for the appellant has placed reliance upon (2009) 14 Supreme Court Cases 187, (Isatish alias Dhanna vs. State of Madhya Pradesh and others) in which it has been laid down that the benefit of the act should be extended to the accused appellant who was a minor on the date of occurrence. It has further been held that at this distant point of time to refer the appellant to the Juvenile Justice Board would not be proper and in the aforesaid case the appellant was ordered to be released.
Thus, there is no doubt that the appellant cannot be compelled to undergo detention otherwise then provided under Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
Hon'ble Apex Court in Criminal Appeal No. 210 of 2005 (Pratap Singh vs. State of Jharkhand and Anr.), a judgment delivered on 02.02.2005 by the Bench of five Hon'ble Judges in which it has been held as under:-
"26. Special provision in respect of pending cases.- 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 Juvenile Court 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 the juvenile has committed the offence."
Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 reads as under:-
"20. Special provision in respect of pending cases.- 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. 1[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."
Section 64 of the Juvenile Justice (Care and Protection of Children) Act, 2000 provides that where a juvenile is undergoing a sentence of imprisonment at the commencement of this Act, shall, in lieu of undergoing such sentence, be sent to a special home or be kept in fit institution. Thus, provision show that even in cases where a mere inquiry is commenced or even where a juvenile has been sentenced a provision of 2000 Act would apply. Therefore, Section 20 of the Act 2000 is to be appreciated in the context of the aforesaid provisions.
Section 20 of the Act as quoted above deals with the special provision in respect of pending cases and begins with non-obstante clause. The sentence "Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on date of which this Act came into force" has great significance. The proceedings in respect of a juvenile pending in any court referred to in Section 20 of the Act is relatable to proceedings initiated before the 2000 Act came into force and which are pending when the 2000 Act came into force. The term "any court" would include even ordinary criminal courts. If the person was a "juvenile" under the 1986 Act the proceedings would not be pending in criminal courts. They would be pending in criminal courts only if the boy had crossed 16 years or girl had crossed 18 years. This shows that Section 20 refers to cases where a person had ceased to be a juvenile under the 1986 Act but had not yet crossed the age of 18 years then the pending case shall continue in that Court as if the 2000 Act has 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, shall forward the juvenile to the Board which shall pass orders in respect of that juvenile.
Thus, I conclude that although conviction of the appellant has been confirmed but as regards sentence is concerned, he should be dealt with under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000.
In (2013) 7 Supreme Court Cases 705, (Salil Bali vs. Union of India and another), the Hon'ble Apex Court has specified its concern about punishment as regards juvenile is concerned. It has been mentioned in the aforesaid judgment as under:-
"One misunderstanding of the law relating to the sentencing of the juveniles, needs to be corrected. The general understanding of a sentence that can be awarded to a juvenile under Section 15(1)(g) of the Juvenile Justice (Care and Protection of Children) Act, 2000, prior to its amendment in 2006, is that after attaining the age of eighteen years, a juvenile who is found guilty of the heinous offence is allowed to go free. Section 15(1)(g), as it stood before the amendment came into effect from 22.08.2006, reads as follows:
"15. (1)(g) make as order directing the juvenile to be sent to a special home for a period of three years:
(i) in the case of juvenile, over seventeen years but less than eighteen years of age for a period of not less than two years;
(ii) in case of any other juvenile for the period until he ceases to be a juvenile:
Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case it is expedient so to do, for reason to be recorded, reduce the period of stay to such period as it thinks fit."
It was generally perceived that a juvenile was free to go, even if he had committed a heinous crime, when he ceased to be a juvenile. The said understanding needs to be clarified on account of the amendment which came into force with effect from 22.08.2006, as a result whereof Section 15(1)(g) now reads as follows:
"15. (1)(g) make an order directing the juvenile to be sent to a special home for a period of three years:
Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit."
The aforesaid amendment now makes it clear that even if a juvenile attains the age of eighteen years within a period of one year he would still have to undergo a sentence of three years, which could spill beyond the period of one year when he attained majority.
It cannot be lost sight of the fact that the essence of Juvenile Justice (Care and Protection of Children) Act, 2000 is restorative and not retributive, providing for rehabilitation and reintegration of children in conflict with law into mainstream society, instead of becoming hardened criminal in future. Thus by reason of legal friction, a person, although not a juvenile has to be treated to be one by the Board for the purpose of sentencing, which takes care of a situation that the person although not a juvenile but still would be treated as such under Juvenile Justice (Care and Protection of Children) Act, 2000 for the said limited purpose.
From a plain reading the explanation of Section 20 is that unless pending cases, which would include not only trial but even subsequent proceeding by way of revision or appeal etc, the determination of juvenility of a juvenile has to be in terms of Clause (l) of Section 2 of the Act.
"11. It is plain from the language of the Explanation to Section 20 that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, etc., the determination of juvenility of a juvenile has to be in terms of Clause (l) of Section 2, even if the juvenile ceases to be a juvenile on or before 1st April, 2001, when the Act of 2000 came into force, and the provisions of the Act would apply as if the said provision had been in force for all purposes and for all material times when the alleged offence was committed. Clause (l) of Section 2 of the Act of 2000 provides that "juvenile in conflict with law" means a "juvenile" who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence. Section 20 also enables the Court to consider and determine the juvenility of a person even after conviction by the regular Court and also empowers the Court, while maintaining the conviction, to set aside the sentence imposed and forward the case to the Juvenile Justice Board concerned for passing sentence in accordance with the provisions of the Act of 2000."
9. Thus, I conclude that the conviction quo the appellant Arun @ Bheem is well founded and needs no interference.
10. The conviction of the accused Arun @ Bheem is sustained, however the punishment of seven years R.I. Coupled with a fine of Rs. 10,000/- imposed on him is quashed, since on the date when offence was committed, the accused appellant Arun @ Bheem was a juvenile in conflict with law, thus, he has to be convicted under the Juvenile Justice (Care and Protection of Children) Act, 2000 and since the accused has undergone the imprisonment for about 2 years and 4 months, it would be appropriate in the peculiar facts of the case that he be set at liberty.
11. In the aforesaid terms, the appeal is partly allowed. Conviction is upheld but the sentence awarded by the court below is accordingly reduced to the period already undergone.
12. Let the accused appellant be released forthwith.
Order Date :- 27.11.2015 sailesh