Bishram Oraon vs The State Of Jharkhand
2023 Latest Caselaw 3474 Jhar

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             IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P. (Cr.) No. 376 of 2023

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      Bishram Oraon                                   .... Petitioner
                                  --   Versus    --
      The State of Jharkhand                          .... Respondent
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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       For the Petitioner        :-     Mr. Ashish Kumar, Advocate
       For the State             :-     Mr. Ravi Kerketta, SC-VI
                                        Ms. Deepika Jojowar, AC to SC-VI
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5/13.09.2023        Heard Mr. Ashish Kumar, the learned counsel appearing on

behalf of the petitioner and Mr. Ravi Kerketta, the learned counsel

appearing on behalf of the respondent State.

2. This petition has been filed for quashing of the order dated

01.03.2023 passed in Miscellaneous Criminal Application No.231 of 2022

in S.T. Case No.216 of 2017 in connection with Gumla Mahila P.S. Case

No.12 of 2016, corresponding to G.R. Case No.556 of 2016, arising out of

Complaint Case No.102 of 2016, registered for the offence under section

376, 323 of the I.P.C, pending in the court of learned Additional Sessions

Judge-I-cum -Special Judge, Gumla.

3. Mr. Ashish Kumar, the learned counsel appearing on behalf

of the petitioner submits that when the so called occurrence has taken

place in the month of June, 2008 and the date of birth of the petitioner is

15.04.1991. He submits that as per the date of birth of the petitioner, he

was aged about 17 years in 2008, therefore, he was juvenile at the said

relevant period. He submits that in view of that, the petitioner is liable to

be treated as juvenile at the time of occurrence and the case is required

to be transferred to the Juvenile Justice Board, Gumla. He submits that in

view of that, the petitioner has moved in Miscellaneous Criminal

Application No.231 of 2022 in S.T. Case No.216 of 2017 for declaring the

petitioner juvenile at the time of occurrence which was rejected by the

order dated 01.03.2023 by the learned court. He submits that the said

order is bad in law as the learned court has taken the offence with effect

from the year 2016, whereas the offence is said to be occurred at the

first time in the year 2008. He submits that in view of that, the impugned

order is erroneous.

4. On the other hand, Mr. Ravi Kerketta, the learned counsel

appearing on behalf of the respondent State submits that the learned

court has rightly passed the impugned order dated 01.03.2023 and there

is no illegality as the allegations are made for the year 2016 and not of

the prior period. He submits that rape is not a continuing offence and in

view of that, the learned court has rightly passed the order. He has relied

in the case of Sri Ganesh v. State of Tamil Nadu and Others,

(2017) 3 SCC 280 and refers to paragraph no.10 of the said judgment

which is quoted below:

"10. In the present case, the trial court took into account the documentary evidence as contemplated in the statutory provisions and returned a finding that the date of birth of the appellant was 19-10-1991. During the course of its judgment, the High Court could not find such conclusion to be vitiated on any ground. In the face of the relevant documentary evidence, there could be no medical examination to ascertain the age of the appellant and as such the consequential directions passed by the High Court were completely unwarranted. Further, if the allegations of the prosecution are that the offence under Section 376 IPC was committed on more than one occasion, in order to see whether the appellant was juvenile or not, it is enough to see if he was juvenile on the date when the last of such incidents had occurred. The trial court was, therefore, justified in going by the assertions made by the victim in her cross-examination and then considering whether the appellant was juvenile on that date or not."

5. Considering the above contentions of the learned counsels

appearing on behalf of the petitioner as well as the respondent State, it

appears that the learned court has held that the alleged rape is of the

year 2016 and in view of that, the learned court has passed the said

order considering that if the allegation is of the year 2016, the petitioner

was not a juvenile. Further the evidence collected during investigation

make it clear that the alleged offence under section 376 IPC is of the

year 2016 and it is settled that offence of rape is not a continuing offence

and if no allegation of the offence of earlier period is not there and if any

could not be said to be series of the facts forming the said transaction as

rape is not a continuing offence. Heinous crime, duty of the court to

scrutinize the plea of juvenility with extreme caution in cases involving

heinous crime to ensure that plea of minority is not implied to scape from

punishment. The court is required to be sensitive in dealing with the

juvenility who is involved in the case of serious nature like, sexual

molestation, rape, gang rape, murder and host of other offences. The

accused cannot be allowed to abuse the statutory protection by

attempting to prove himself as a minor when the documentary evidence

to prove his minority gives rise to a reasonable doubt his assertion of

minority. A reference may be made to the case of Om Prakash v. State

of Rajasthan and Others, (2012) 5 SCC 201, wherein paragraph

no.3, 22, 27 and 34, it has been held as under:

"3. The Juvenile Justice Act was enacted with a laudable object of providing a separate forum or a Special Court for holding trial of children/juveniles by the Juvenile Court as it was felt that children become delinquent by force of circumstance and not by choice and hence they need to be treated with care and sensitivity while dealing and trying cases involving criminal offence. But when an accused is alleged to have committed a heinous offence like rape and murder or any other grave offence when he ceased to be a child on attaining the age of 18 years, but seeks protection of the Juvenile Justice Act under the ostensible plea of being a minor, should such an accused be allowed to be tried by a Juvenile Court or should he be referred to a competent court of criminal jurisdiction where the trial of other adult persons are held?

22. It is no doubt true that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years on the date of the

incident and the documentary evidence at least prima facie proves the same, he would be entitled for this special protection under the Juvenile Justice Act. But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of justice.

27. The benefit of the principle of benevolent legislation attached to the Juvenile Justice Act would thus apply to only such cases wherein the accused is held to be a juvenile on the basis of at least prima facie evidence regarding his minority as the benefit of the possibilities of two views in regard to the age of the alleged accused who is involved in grave and serious offence which he committed and gave effect to it in a well-planned manner reflecting his maturity of mind rather than innocence indicating that his plea of juvenility is more in the nature of a shield to dodge or dupe the arms of law, cannot be allowed to come to his rescue. Hence, if the plea of juvenility or the fact that he had not attained the age of discretion so as to understand the consequence of his heinous act is not free from ambiguity or doubt, the said plea cannot be allowed to be raised merely on doubtful school admission record and in the event it is doubtful, the medical evidence will have to be given due weightage while determining the age of the accused.

34. The benefit of benevolent legislation under the Juvenile Justice Act obviously will offer protection to a genuine child accused/juvenile who does not put the court into any dilemma as to whether he is a juvenile or not by adducing evidence in support of his plea of minority but in absence of the same, reliance placed merely on shaky evidence like the school admission register which is not proved or oral evidence based on conjectures leading to further ambiguity, cannot be relied upon in preference to the medical evidence for assessing the age of the accused."

6. In view of the above and looking to the impugned order

passed by the learned Sessions Judge, it appears that the learned court

has rightly considered the offence to be of the year 2016 and at that time

the petitioner was major. In view of the above and considering the above

judgment and the judgment relied by Mr. Kerketta, the learned counsel

for the respondent State, it is crystal clear that only requirement was to

see if the accused was juvenile on the date when the last of such

incident has occurred or not. The Court finds that the learned court has

rightly passed the said order. No case of interference is required in the

impugned order.

7. Accordingly, W.P.(Cr.) No.376 of 2023 is dismissed.

8. Pending petition, if any, also stands dismissed accordingly.

( Sanjay Kumar Dwivedi, J.)

SI/, A.F.R.