Uttarakhand High Court
Unknown vs State Of Uttarakhand on 21 May, 2025
2025:UHC:4287-DB
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE CHIEF JUSTICE MR. G. NARENDAR
AND
THE HON'BLE JUSTICE Mr. ALOK MAHRA
CRIMINAL JAIL APPEAL No. 23 of 2022
21st May, 2025
Anas. ...Appellant
Versus
State of Uttarakhand. ...Respondent
(Ms. Divya Jain and Ms. Sweta Jain, Advocates for the appellant)
(Mr. J.S. Virk, Deputy Advocate General with Mr. Rakesh Joshi, Brief Holder
for the State of Uttarakhand)
ALOK MAHRA, J.
JUDGMENT
This appeal preferred under Section 374 (2)
of the Code of Criminal Procedure, is directed against
the judgment & order dated 28.02.2022 passed by
learned Additional District & Sessions Judge/Special
Judge (POCSO), Haridwar in Special Sessions Trial No.
88 of 2020 "State Vs. Anas", whereby the accused/
appellant-Anas has been convicted under Section 363
I.P.C. and has been directed to undergo two years
rigorous imprisonment with fine of ₹5,000/- and, in
default of payment of fine, he was sentenced to
undergo one month's additional imprisonment. He has
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also been convicted under Section 376(2)(n) of I.P.C.
and has been directed to undergo ten years rigorous
imprisonment with fine of ₹20,000/- and, in default of
payment of fine, he was sentenced to undergo two
months' additional imprisonment. He has further been
convicted under Section 6 of POCSO Act and has been
directed to undergo twenty years rigorous
imprisonment with fine of ₹50,000/- and, in default of
payment of fine, he was sentenced to undergo six
months' additional imprisonment It was directed that
all the sentences shall run concurrently.
2. Prosecution case, in brief, is that, on
09.07.2020, Smt. Pushpa Rajput Lodhi (P.W.2) lodged
a complaint at Police Station Kankhal, District Haridwar
stating therein that her daughter, aged about 17 years,
is missing from home since 08.07.2020; that, she had
searched her nearby place, but could not trace her;
that, when they searched at home, they found that her
clothes were not there; that, her younger daughter
informed her that her sister was wearing blue jeans
and top and was also wearing heels sandal in her feet;
that, she is missing since 11:00 a.m. from home. The
complainant requested to lodge a missing complaint of
her daughter.
3. Learned counsel for the appellant would
submit that, in the supplementary medical report of the
victim, the doctor has opined that no spermatozoa dead
or alive seen on microscopic examination of both slides
and no definite opinion about sexual assault can be
given. Learned counsel for the appellant submits that
there are major contradictions in the statement of the
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victim and the complainant; that, there are no
signatures of the complainant on the site plan, which
was admittedly prepared on the pointing out of the
complainant.
4. Learned counsel for the appellant has filed a
supplementary affidavit annexing therewith the School
Leaving Certificate of the appellant to contend that the
appellant was minor at the time of alleged incident.
5. 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 of the
Act also enables the Court to consider and determine
the juvenility of a person even after conviction by the
regular Court.
6. This Court vide order dated 15.05.2025 asked
the learned Deputy Advocate General to secure
instructions and also to take steps to verify the sanctity
of the documents placed before the Court.
7. Today, learned Deputy Advocate General has
placed before the Court, the written instructions
received from In-charge Police Station, Kankhal,
Haridwar, wherein he has enclosed the Certificate
issued by the Principal, Primary School, Fazalpur,
Block-3 Urban Area, Meerut, in which the Principal has
certified that the date of birth of the appellant, as
recorded in the School Leaving Certificate, is
20.08.2002 and the details of the appellant has also
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been furnished. Thus, the respondent/State has
admitted the date of birth of the appellant as
20.08.2002 and, on the date of alleged incident, the
age of the appellant was 17 years, 10 months and 18
days and, as such, the appellant was a juvenile on the
date of incident.
8. Admittedly, there are no ocular witnesses.
The conviction is based on the strength of the
statement recorded by the victim. The appellant is
languishing in jail since 20.07.2020 and has spent
about 4 years and 10 months in the jail.
9. Hon'ble Supreme Court in the case of "Abuzar
Hossain Alias Gulam Hossain Vs. State of West Bengal,
reported in (2012) 10 SCC 489, has held that the claim
of juvenility can be raised at any stage, even after the
final disposal of the case. Paragraph no.39.1 & 39.5 of
the said judgment are extracted below:
"39.1. A claim of juvenility may be raised at
any stage even after the final disposal of the
case. It may be raised for the first time before
this Court as well after the final disposal of
the case. The delay in raising the claim of
juvenility cannot be a ground for rejection of
such claim. The claim of juvenility can be
raised in appeal even if not pressed before
the trial court and can be raised for the first
time before this Court though not pressed
before the trial court and in the appeal court.
39.5. The court where the plea of juvenility is
raised for the first time should always be
guided by the objectives of the 2000 Act and
be alive to the position that the beneficent
and salutary provisions contained in the 2000
Act are not defeated by the hypertechnical
approach and the persons who are entitled to
get benefits of the 2000 Act get such benefits.
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The courts should not be unnecessarily
influenced by any general impression that in
schools the parents/guardians understate the
age of their wards by one or two years for
future benefits or that age determination by
medical examination is not very precise. The
matter should be considered prima facie on
the touchstone of preponderance of
probability."
10. In the case of "Thirumoorthy Vs. State,
represented by the Inspector of Police", reported in
2024 SCC On Line SC 375, Hon'ble Supreme Court,
while dealing with the identical issue, has held that
entire proceedings taken against the juvenile right from
the stage of investigation and the completion of trial
would stand vitiated, as having been undertaken in
gross violation of the mandatory requirements of the
Juvenile Justice Act. The Court further observed not to
dwell itself into the merits of the matter or to re-
appreciate the evidence available on record for finding
out, whether the prosecution has been able to prove
the guilt of the appellant by reliable circumstantial
evidence.
11. Thus, in view of the law laid down by Hon'ble
Supreme Court, this Court has no hesitation in
quashing the sentence awarded to the accused/
appellant.
12. Accordingly, the Appeal preferred by the
accused/appellant is allowed. The sentence awarded to
the accused/appellant is hereby quashed. The
accused/appellant-Anas is acquitted of charge of
offences punishable under Sections 363, 376(2)(n)of
I.P.C. and Section 6 of POCSO Act. He is in jail. Let a
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copy of this judgment be sent to the Superintendent of
the Jail concerned, who may set the appellant at liberty
forthwith, if he is not required in any other case.
13. Let a copy of this judgment along with the
record of the trial Court be sent back to the trial Court.
(G. NARENDAR, C.J.)
(ALOK MAHRA, J.)
Arpan
ARPAN
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JAISWAL
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serialNumber=060FC17022BEAE3DE215D68D9D454C5
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JAISWAL
Date: 2025.05.23 15:42:51 +05'30'
