Karnataka High Court
Shiddesh Bharamappa Channagiri vs The State Of Karnataka on 13 June, 2024
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CRL.A. No. 100145 of 2021
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 13TH DAY OF JUNE, 2024
R
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 100145 OF 2021 (C)
BETWEEN:
SHIDDESH BHARAMAPPA CHANNAGIRI
AGE 18 YEARS, OCC: HAMALI
YASHAVANT
NARAYANKAR R/O. MASUR SIDDESHWARA NAGAR
Location: HIGH HIREKERUR TALUK,
COURT OF
KARNATAKA
DHARWAD HAVERI DISTRICT.
BENCH
(ACCUSED BEFORE THE SESSIONS COURT,
APPELLANT BEFORE THE HON'BLE HIGH COURT)
...APPELLANT
(BY SRI.S.D.BABLADI., ADVOCATE (THROUGH VC))
AND:
1. THE STATE OF KARNATAKA
HIREKERUR POLICE STATION
REPRESENTED BY STATE
PUBLIC PROSECUTOR
HIGH COURT BUILDINGS DHARWAD.
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2. SMT. PALLAVI BALIGAR
AGED ABOUT 25 YEARS OCC: COOLIE
R/O. MASUR SIDDESHWARA NAGAR
HIREKERUR TALUK
HAVERI DISTRICT.
(COMPLAINANT BEFORE THE SESSIONS COURT
RESPONDENT BEFORE THIS HON'BLE HIGH COURT)
...RESPONDENTS
(BY SRI.M.B.GUNDAWADE (ADDL.SPP.FOR R1) (VC)
R2 SERVED AND UNREPRESENTED)
THIS CRIMINAL APPEAL IS FILED U/S. 374(2) OF CR.P.C.
PRAYING TO SET ASIDE THE JUDGMENT PASSED BY THE ADDL.
DISTRICT AND SESSIONS JUDGE, FTSC-1, HAVERI
PUNISHABLE UNDER SECTIONS 366, 376(2)(I) OF IPC AND
SECTION 6 OF POSCO ACT, 2012 AND 3(2)(V) OF SC AND ST
(PA) ACT 1989 IN SPECIAL S.C.NO.31/2018 DATED 9TH APRIL
2021 AND ACQUIT THE APPELLANT FROM THE CHARGES
LEVELED AGAINST HIM.
THIS CRIMINAL APPEAL, COMING ON FOR HEARING AND
THE SAME HAVING BEEN HEARD AND RESERVED FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY RAMACHANDRA
D. HUDDAR J., DELIVERED THE FOLLOWING:
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CRL.A. No. 100145 of 2021
JUDGMENT
The present appeal has been filed by the Child in Conflict with Law (hereinafter called as 'CCL') impugning the orders dated 9th April, 2021 passed in Special Sessions Case No.31 of 2018 by the Additional District and Sessions Judge, FTSC- 1, Haveri. Briefly, the facts leading to this appeal are as under:
FIR was registered against CCL by the Hirekerur Police Station for the offences punishable under sections 366, 376(2)(i) of IPC, under Section 6 of POCSO Act, 2012 and under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989 as amended (in short 'SC & ST (PA) Act').
2. After his arrest on 17.4.2018, he was released on bail. After completion of investigation, charge sheet was filed. The Juvenile Justice Board (`JJB' in short) was called upon to decide the issue as to whether the CCL is to be tried by the Board or as an adult by the -4- NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 Children's Court. In this appeal the learned Counsel for the appellant mainly pressed into service, that no proper procedures have been followed by the JJB or the Children's Court in assessing the age of the CCL.
3. It is alleged in the FIR that, the victim girl was aged about two years six months at the time of alleged incident and belongs to Scheduled Tribe. It is alleged in the FIR that, on 15.4.2018, accused kidnapped the minor victim girl from the lawful guardianship of the complainant with an intention to have illicit intercourse with her. With that intention CCL took the victim girl behind his house, situated at Masur village, committed forcible sexual assault on her, so also aggravated penetrative sexual assault upon her, repeatedly, knowing fully well that, she was a minor and belongs to the Scheduled Tribe. Therefore, it is alleged by the complainant in the complaint that, the accused had committed the aforesaid offences. -5-
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4. Initially, as per the records, the matter was pending before JJB, Haveri. The learned President of JJB, Haveri, passed a detailed order on 14.9.2018 with a direction to transfer the case to the Children's Court i.e., the trial Court. During the pendency of the trial as stated above, CCL was granted bail.
5. Before the learned Special Court i.e., Children's Court to prove the guilt of the accused, prosecution has examined in all, 11 witnesses in the shape of PWs. 1 to 11, so also got marked Ex.P.1 to P20. MO Nos.1 to 11 are also marked.
6. Learned trial Court i.e., Children's Court after having heard the arguments and after evaluation of the evidence placed on record by the prosecution, found the CCL guilty of committing the offences under sections 366, 376(2)(i) of IPC, under Section 6 of the POCSO Act, 2012 and under Section 3(2)(v) of SC and ST (PA) Act, 1989 and sentenced him as under:
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 "The accused shall undergo rigorous imprisonment for a period of 5 years and shall pay fine of Rs.2,000/- For the offence punishable under Section 366 of IPC. In default of payment of fine amount, the accused shall undergo simple imprisonment for further period of one year.
The accused shall undergo rigorous imprisonment for a period of 10 years and shall pay fine of Rs.5,000/- for the offence punishable under Section 6 of POCSO Act. In default of payment of fine amount, the accused shall undergo simple imprisonment for further period of 6 months.
The accused shall undergo life imprisonment and shall pay fine of Rs.5,000/- for the offence punishable under Section 3(2) (V) of SC/ST (Prevention of Atrocities) Act, 1989. In default of payment of fine amount, the accused shall undergo rigorous imprisonment for further period of five years."
7. Being aggrieved and dissatisfied by the impugned judgment, now, the CCL is before this Court, challenging the said judgment of conviction and order of sentence passed against him.
8. The learned counsel for the appellant Sri S.D.Babaladi with all force submits that, the JJB as well as the Children's Court have committed error in holding -7- NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 that, the CCL is an adult and without applying the judicious mind, have come to the conclusion that, the CCL is an adult and he has been wrongly tried by the Children's Court. It is his submission that, the appellant admittedly was a juvenile, aged 16 years 10 months 20 days as on the date of commission of the alleged offence. According to him, as per the provisions of Juvenile Justice Act, 2015 (in short `the Act'), it provides two procedures, out of which, JJB has to opt for one found suitable.
9. Sri. S. D. Babladi, Advocate for appellant further submits that, the JJB has passed an order on preliminary assessment under section 15 read with section 18(3) of Juvenile Justice (Care and Protection of Children) Act, 2015. According to this provision, the JJB has received a report from Psychologist attached to the DIMHANS. The JJB has to assess mental and physical capacity of this CCL to commit to the aforesaid offences, so also ability to understand the consequences of those acts. It is his -8- NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 submission that, CCL has no maturity and he is innocent as such, he should have been tried before the JJB only. It is his further submission that, the learned JJB has just reproduced the sections and has wrongly come to the conclusion based upon the certificate issued by the Headmaster collected by the Investigation Officer stating that, as on the date of commission of the offence, the age of the CCL was 16 years, 10 months, 20 days. The said certificate was issued by the Headmaster, Government Lower Primary School, Masur dated 25.4.2018.
10. It is his submission that, when the aforesaid offences are alleged to be the heinous offences as per Section 2(33) of the JJ Act, 2015, the JJB has just referred the report of the Psychologist. No further report from the experts in the shape of DNA test or ossification test have been obtained by the Board. Without considering that, the impugned order was passed by the JJB by coming to the wrong conclusion, that, the CCL has -9- NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 to be tried as an adult. The Children's Court passed an order on 5.8.2019 after transfer of the case stating that, the CCL has to be tried as an adult. The said order passed by the Children's Court shows that, there is no application of mind by the Children's Court also. No opportunity was given to the CCL to prove that, he was still a juvenile and having no maturity at all. He submits that, the order so passed by the JJB as well as the Children's Court is cryptic in nature. They have been passed without giving any opportunity either to the prosecution or to the appellant. As such, the principles of natural justice, that is, audi alteram partem, is not followed by the JJB as well as the Children's Court. This has affected the fundamental rights of the appellant as provided under Articles 14, 19 and 21 of the Constitution of India.
11. In support of his submission, the learned counsel for the appellant relies upon the judgment of the Hon'ble Supreme Court of India in A.R.Antulay Vs.
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 R.S.Nayak and another, reported in (1988) 2 SCC
602. Further, learned counsel for the appellant submits that, on perusal of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 as well as the POSCO Act and also the provisions of the IPC, it shows that, if a juvenile is above 16 years of age, looking to his mental maturity, he can either be tried by the JJB or case may be transferred to the Children's Court. It is his submission that, even after transfer of a juvenile to the Children's Court, the Children's Court is required to take a fresh enquiry and adjudicate as to whether he should be tried as an adult. It is his submission that, when law prescribes alternative punishments in that case, judicial authority applying such laws has to be extremely cautious and careful while passing such orders, keeping the interest of women, children and persons belonging to backward caste, persons affected by extreme poverty or socially neglected group to see that equal justice is imparted to, as provided under the preamble of the Indian Constitution.
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12. In support of this submission, the learned counsel for the appellant relied upon the judgment of the Hon'ble Supreme Court of India in Bachan Singh Vs. State of Punjab (1980) 2 SCC 684. So also, he submits that, there is no proper procedure followed with regard to the assessment by conducting the preliminary inquiry by the JJB as well as the Children's Court, no adequate opportunity was given to the appellant. Therefore, the procedure so adopted is patently illegal, erroneous, and unconstitutional. Therefore, he submits that, this case is a fit case to set aside the conviction.
13. He also relies upon a judgment of the Hon'ble Apex court in Narayan Chetanram Chaudhary Vs. State of Maharashtra (2000)8 SCC 457 Supreme Court) which has dealt with the provisions of the JJ Act as well as other provisions. According to his submission, the intention of the Legislature has not been properly understood by both JJ Board as well as the children's
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 Court. He further relies upon the judgment in Mahesh Vs. State of Rajasthan (2021) 18 SCC 582.
14. Relying upon all these provisions of law as well as the said Judgments, the learned counsel for the appellant submits that, on this lapse on the part of the Children's Court as well as JJ Board, the conviction so passed against the accused and order of sentence is liable to be set aside.
15. In addition to that, he submits that, the witnesses so examined in this case, are all relatives. They are all interested witnesses. Because of some domestic dispute between the father of the CCL as well as the complainant and her mother, a false case has been foisted against CCL, falsely implicating him. As the father of the CCL was a drunkard and every day he used to quarrel being a neighbour of the complainant's mother, because of that alleged irritation and because of several quarrels in between them, the CCL has been falsely implicated in this case.
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16. In support of his submission, he relied upon certain evidence placed on record by the prosecution, as well as pointed out certain contradictions and discrepancies in the evidence spoken to by the witnesses examined by the prosecution. It is his submission that, the Investigation Officer also has not properly followed the procedure. Therefore, he submits that, the appeal so filed by the appellant deserves to be allowed and the judgment of conviction and order of sentence, so passed against the CCL is to be set aside.
17. As against this submission, learned counsel for the respondent - State Sri M.B.Gundawade, Additional State Public Prosecutor submits that, on perusal of the order sheet of JJ Board as well as the Children's Court, after fully satisfying, the JJ Board has come to the conclusion that, the CCL is a juvenile, but has to be tried as an adult. The said finding is based upon the report from the Psychologist from the DIMHANS Hospital, Dharwad. So also, certain guidelines which were required
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 are followed by the JJB and the said order is in strict adherence to the provisions of the JJ Act.
18. He further submits that, while assessing the age of the CCL, the JJ Board has taken to consideration the birth certificate issued by the Headmaster, where the CCL was studying at that point of time. That was a conclusive proof. The investigation officer has maintained throughout his investigation that, this CCL is aged in between 16 and 18 years, who has to be tried by the Children's Court only. No appeal or revision though available to the appellant - CCL was filed by him. Thereby, whatever the order so passed by the JJ Board and Children's Court with regard to the age of the CCL has become final. He was capable of understanding the nature of the offences which he has committed. He had full knowledge about this. Therefore, now the appellant cannot find fault with JJ Board or the Children's Court.
19. It is his further submission that, after assessing the evidence and its evaluation as the complainant
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 herself is an eyewitness to the said incident so also her mother, who accompanied her, that itself goes to establish that just to deprive the prosecution case, the appellant has made out such a ground in this appeal. The said submission of the learned Counsel for the appellant, according to him, cannot be accepted. Thus, it is submitted that, the learned Children's Court has rightly passed the legally sustainable judgment of conviction and order of sentence, which do not require any interference by this Court.
20. We have given our anxious considerations to the arguments of both side. Meticulously perused the records. In view of rival submissions of both the side, the points that would arise for our consideration are:
(1) Whether the appellant proves that no proper procedures have been followed by the JJ Board as well as the Children's Court in ascertaining and assessing his age as a juvenile as submitted?
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 (2) Whether the trial Children's Court has committed any legal or factual error in finding the CCL guilty of committing the offence?
(3) What order?
21. In view of the submissions made at the Bar it is just and proper to incorporate the relevant statutes and rules with regard to the present facts of the case in this judgment so as to have a better understanding of the provisions of the Act.
Section 2(10) of the JJ Act defines Board i.e., "Board" means a JJB constituted under Section 4.
Section 2(13) speaks of "child in conflict with law", it means a child who is alleged or found to have committed an offence and who has not completed 18 years of age on the date of commission of such an offence.
Section 2(20) speaks of "Children's Court". It means a court established under the commissions for Protection of Child Rights Act, 2005 or the Special Court
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 under the Protection of Children from Sexual Offences Act, 2012, wherever existing and where such Courts have not been designated, the Court of sessions having jurisdiction to try offences under the Act.
Section 2(22) defines Committee, it means Child Welfare Committee constituted under Section 27.
Section 2(23) defines 'Court', it means a Civil Court, which has jurisdiction in matters of adoption and guardianship and may include the District Court, Family Court and City Civil Courts.
Section 2(33) defines "heinous offences". These heinous offences includes the offences for which the minimum punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force, is imprisonment for seven years or more.
Section 4. speaks of "JJB". As per this section, a Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of first class not being a Chief Metropolitan or Chief Judicial Magistrate.
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 Section 7 speaks of "procedure in relation to Board". Sub section 2 of this section 7 also speaks of procedure to be followed by the JJB.
22. The most important sections are section 14, 15 and 17 to 19 of the JJ Act. It speaks of inquiry by Board regarding Child in Conflict with Law.
Section 14: Inquiry by Board regarding child in conflict with law.--
(1) Where a child alleged to be in conflict with law is produced before Board, the Board shall hold an inquiry in accordance with the provisions of this Act and may pass such orders in relation to such child as it deems fit under sections 17 and 18 of this Act.
(2) The inquiry under this section shall be completed within a period of four months from the date of first production of the child before the Board, unless the period is extended, for a maximum period of two more months by the Board, having regard to the circumstances of the case and after recording the reasons in writing for such extension.
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 (3) A preliminary assessment in case of heinous offences under section 15 shall be disposed of by the Board within a period of three months from the date of first production of the child before the Board.
(4) If inquiry by the Board under sub-section (2) for petty offences remains inconclusive even after the extended period, the proceedings shall stand terminated:
Provided that for serious or heinous offences, in case the Board requires further extension of time for completion of inquiry, the same shall be granted by the Chief Judicial Magistrate or, as the case may be, the Chief Metropolitan Magistrate, for reasons to be recorded in writing.
(5) The Board shall take the following steps to ensure fair and speedy inquiry, namely:--
(a) at the time of initiating the inquiry, the Board shall satisfy itself that the child in conflict with law has not been subjected to any ill-
treatment by the police or by any other person, including a lawyer or probation officer and take corrective steps in case of such ill-treatment;
(b) in all cases under the Act, the proceedings shall be conducted in simple manner as possible
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 and care shall be taken to ensure that the child, against whom the proceedings have been instituted, is given child-friendly atmosphere during the proceedings;
(c) every child brought before the Board shall be given the opportunity of being heard and participate in the inquiry; 17
(d) cases of petty offences, shall be disposed of by the Board through summary proceedings, as per the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974);
(e) inquiry of serious offences shall be disposed of by the Board, by following the procedure, for trial in summons cases under the Code of Criminal Procedure, 1973 (2 of 1974);
(f) inquiry of heinous offences,--
(i) for child below the age of sixteen years as on the date of commission of an offence shall be disposed of by the Board under clause (e);
(ii) for child above the age of sixteen years as on the date of commission of an offence shall be dealt with in the manner prescribed under section 15.
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 Section 15. Preliminary assessment into heinous offences by Board.--
(1) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of sub-section (3) of section 18:
Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts.
Explanation.--For the purposes of this section, it is clarified that preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence. (2) Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973 (2 of 1974):
Provided that the order of the Board to dispose of the matter shall be appealable under sub- section (2) of section 101:
Provided further that the assessment under this section shall be completed within the period specified in section 14.
Section 17. Orders regarding a child not found to be in conflict with law.--
(1) Where a Board is satisfied on inquiry that the child brought before it has not committed any offence, then notwithstanding anything contrary contained in any other law for the time being in force, the Board shall pass order to that effect. 18.
(2) In case it appears to the Board that the child referred to in sub-section (1) is in need of care and protection, it may refer the child to the Committee with appropriate directions.
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 Section 18. Orders regarding child found to be in conflict with law.--
(1) Where a Board is satisfied on inquiry that a child irrespective of age has committed a petty offence, or a serious offence, or a child below the age of sixteen years has committed a heinous offence, 1[or a child above the age of sixteen years has committed a heinous offence and the Board has, after preliminary assessment under Section 15, disposed of the matter] then, notwithstanding anything contrary contained in any other law for the time being in force, and based on the nature of offence, specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child, the Board may, if it so thinks fit,--
(a) allow the child to go home after advice or admonition by following appropriate inquiry and counselling to such child and to his parents or the guardian;
(b) direct the child to participate in group counselling and similar activities;
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(c) order the child to perform community service under the supervision of an organisation or institution, or a specified person, persons or group of persons identified by the Board;
(d) order the child or parents or the guardian of the child to pay fine:
Provided that, in case the child is working, it may be ensured that the provisions of any labour law for the time being in force are not violated;
(e) direct the child to be released on probation of good conduct and placed under the care of any parent, guardian or fit person, on such parent, guardian or fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and child's well-being for any period not exceeding three years;
(f) direct the child to be released on probation of good conduct and placed under the care and supervision of any fit facility for ensuring the good behaviour and child's well-being for any period not exceeding three years;
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(g) direct the child to be sent to a special home, for such period, not exceeding three years, as it thinks fit, for providing reformative services including education, skill development, counselling, behaviour modification therapy, and psychiatric support during the period of stay in the special home:
Provided that if the conduct and behaviour of the child has been such that, it would not be in the child's interest, or in the interest of other children housed in a special home, the Board may send such child to the place of safety.
(2) If an order is passed under clauses (a) to (g) of sub-section (1), the Board may, in addition pass orders to--
(i) attend school; or
(ii) attend a vocational training centre; or
(iii) attend a therapeutic centre; or
(iv) prohibit the child from visiting, frequenting or appearing at a specified place; or
(v) undergo a de-addiction programme.
(3) Where the Board after preliminary assessment under section 15 pass an order that there is a need for trial of the said child as an adult, then
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 the Board may order transfer of the trial of the case to the Children's Court having jurisdiction to try such offences.
Section 19. Powers of Children's Court.--
(1) After the receipt of preliminary assessment from the Board under section 15, the Children's Court may decide that-- 19
(i) there is a need for trial of the child as an adult as per the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) and pass appropriate orders after trial subject to the provisions of this section and section 21, considering the special needs of the child, the tenets of fair trial and maintaining a child friendly atmosphere;
(ii) there is no need for trial of the child as an adult and may conduct an inquiry as a Board and pass appropriate orders in accordance with the provisions of section 18.
(2) The Children's Court shall ensure that the final order, with regard to a child in conflict with law,
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 shall include an individual care plan for the rehabilitation of child, including follow up by the probation officer or the District Child Protection Unit or a social worker.
(3) The Children's Court shall ensure that the child who is found to be in conflict with law is sent to a place of safety till he attains the age of twenty-one years and thereafter, the person shall be transferred to a jail:
Provided that the reformative services including educational services, skill development, alternative therapy such as counselling, behaviour modification therapy, and psychiatric support shall be provided to the child during the period of his stay in the place of safety.
(4) The Children's Court shall ensure that there is a periodic follow up report every year by the probation officer or the District Child Protection Unit or a social worker, as required, to evaluate the progress of the child in the place of safety and to ensure that there is no ill-treatment to the child in any form.
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 (5) The reports under sub-section (4) shall be forwarded to the Children's Court for record and follow up, as may be required.
23. Even the other provisions like Section 101 speaks of appeals on the orders under the Act, so also the act speaks of revision.
24. Even in this judgment, it is just proper to incorporate certain model rules framed in the year 2016(as amended) i.e., such rule 10, 10A and 11 of Juvenile Justice (Care and Protection of Children's Model) Rules, 2015. They read as under:
10. Post-production processes by the Board.- (1) On production of the child before the Board, the report containing the social background of the child, circumstances of apprehending the child and offence alleged to have been committed by the child as provided by the officers, individuals, agencies producing the child shall be reviewed by the Board and the Board may pass such orders in relation to the child as it deems fit, including orders under sections 17 and 18 of the Act, namely:
(i) disposing of the case, if on the consideration of the documents and record submitted at the time of his first
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 appearance, his being in conflict with law appears to be unfounded or where the child is alleged to be involved in petty offences;
(ii) referring the child to the Committee where it appears to the Board that the child is in need of care and protection;
(iii) releasing the child in the supervision or custody of fit persons or fit institutions or Probation Officers as the case may be, through an order in Form 3, with a direction to appear or present a child for an inquiry on the next date; and
(iv) directing the child to be kept in the Child Care Institution, as appropriate, if necessary, pending inquiry as per order in Form 4.
(2) In all cases of release pending inquiry, the Board shall notify the next date of hearing, not later than fifteen days of the first summary inquiry and also seek social investigation report from the Probation Officer, or in case a Probation Officer is not available the Child Welfare Officer or social worker concerned through an order in Form
5. (3) When the child alleged to be in conflict with law, after being admitted to bail, fails to appear before the Board, on the date fixed for hearing, and no application is moved for exemption on his behalf or there is not sufficient reason for granting him exemption, the Board shall, issue to the Child Welfare Police Officer and the Person- in-charge of the Police Station directions for the production of the child.
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 (4) If the Child Welfare Police Officer fails to produce the child before the Board even after the issuance of the directions for production of the child, the Board shall instead of issuing process under section 82 of the Code of Criminal Procedure, 1973 pass orders as appropriate under section 26 of the Act.
(5) In cases of heinous offences alleged to have been committed by a child, who has completed the age of sixteen years, the Child Welfare Police Officer shall produce the statement of witnesses recorded by him and other documents prepared during the course of investigation within a period of one month from the date of first production of the child before the Board, a copy of which shall also be given to the child or parent or guardian of the child.
(6) In cases of petty or serious offences, the final report shall be filed before the Board at the earliest and in any case not beyond the period of two months from the date of information to the police, except in those cases where it was not reasonably known that the person involved in the offence was a child, in which case extension of time may be granted by the Board for filing the final report.
(7) When witnesses are produced for examination in an inquiry relating to a child alleged to be in conflict with law, the Board shall ensure that the inquiry is not conducted in the spirit of strict adversarial proceedings and it shall use the powers conferred by section 165 of the Indian Evidence Act, 1872 (1 of 1872) so as to
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 interrogate the child and proceed with the presumptions in favour of the child. (8) While examining a child alleged to be in conflict with law and recording his statement during the inquiry under section 14 of the Act, the Board shall address the child in a child-friendly manner in order to put the child at ease and to encourage him to state the facts and circumstances without any fear, not only in respect of the offence which has been alleged against the child, but also in respect of the home and social surroundings, and the influence or the offences to which the child might have been subjected to.
(9) The Board shall take into account the report containing circumstances of apprehending the child and the offence alleged to have been committed by him and the social investigation report in Form 6 prepared by the Probation Officer or the voluntary or non- governmental organisation, along with the evidence produced by the parties for arriving at a conclusion.
10 A. Preliminary assessment into heinous offences by Board.- (1) The Board shall in the first instance determine whether the child is of sixteen years of age or above; if not, it shall proceed as per provisions of section 14 of the Act. (2) For the purpose of conducting a preliminary assessment in case of heinous offences, the Board may take the assistance of psychologists or psycho-social workers or other experts who have experience of working with children in difficult
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 circumstances. A panel of such experts may be made available by the District Child Protection Unit, whose assistance can be taken by the Board or could be accessed independently.
(3) While making the preliminary assessment, the child shall be presumed to be innocent unless proved otherwise. (4) Where the Board, after preliminary assessment under section 15 of the Act, passes an order that there is a need for trial of the said child as an adult, it shall assign reasons for the same and the copy of the order shall be provided to the child forthwith.
11. Completion of Inquiry.- (1) Where after preliminary assessment under section 15 of the Act, in cases of heinous offences allegedly committed by a child, the Board decides to dispose of the matter, the Board may pass any of the dispositional orders as specified in section 18 of the Act.
(2) Before passing an order, the Board shall obtain a social investigation report in Form 6 prepared by the Probation Officer or Child Welfare Officer or social worker as ordered, and take the findings of the report into account.
(3) All dispositional orders passed by the Board shall necessarily include an individual care plan in Form 7 for the child in conflict with law concerned, prepared by a Probation Officer or Child Welfare Officer or a recognised voluntary organisation on the basis of interaction with the child and his family, where possible.
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 (4) Where the Board is satisfied that it is neither in the interest of the child himself nor in the interest of other children to keep a child in the special home, the Board may order the child to be kept in a place of safety and in a manner considered appropriate by it.
(5) Where the Board decides to release the child after advice or admonition or after participation in group counseling or orders him to perform community service, necessary direction may also be issued by the Board to the District Child Protection Unit for arranging such counseling and community service.
(6) Where the Board decides to release the child in conflict with law on probation and place him under the care of the parent or the guardian or fit person, the person in whose custody the child is released may be required to submit a written undertaking in Form 8 for good behavior and well-being of the child for a maximum period of three years.
(7) The Board may order the release of a child in conflict with law on execution of a personal bond without surety in Form 9. (8) In the event of placement of the child in a fit facility or special home, the Board shall consider that the fit facility or special home is located nearest to the place of residence of the child's parent or guardian, except where it is not in the best interest of the child to do so.
(9) The Board, where it releases a child on probation and places him under the care of
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 parent or guardian or fit person or where the child is released on probation and placed under the care of fit facility, it may also order that the child be placed under the supervision of a Probation Officer who shall submit periodic reports in Form 10 and the period of such supervision shall be maximum of three years.
(10) Where it appears to the Board that the child has not complied with the probation conditions, it may order the child to be produced before it and may send the child to a special home or place of safety for the remaining period of supervision.
(11) In no case, the period of stay in the special home or the place of safety shall exceed the maximum period provided in clause (g) of sub-section (1) of section 18 of the Act.
25. The appellant has not questioned the designation of a Special Court established under the Juvenile Justice Act to try the offences of present nature.
26. Section 28 POCSO Act speaks of designation of Special Courts, which is not in dispute. On perusal of the aforesaid provisions of law, Section 15 of the JJ Act enables the board to make preliminary assessment into heinous offences, where such an offence alleged to have
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 been committed by a child between 16 and 18 years of age. The preliminary assessment is to be conducted with regard to his mental and physical capacity to commit such an offence, ability to understand the consequences of the offence and the circumstances in which the offence was alleged to have been committed.
27. On reading the proviso to the section 15, it provides that for making such an assessment, the Board may take assistance of an experienced Psychologist or Psycho-social worker, or other experts. Further explanations provide that, the process of preliminary assessment is not a trial but merely to assess the capacity of such a child to commit and understand the consequences of the alleged offence. The importance of the assistance from the expert is even evident from reading section 101(2) of the Act. While considering the appeal against the order passed under section 15, the Appellate Authority can also take assistance of experts other than those who assisted the Board.
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28. Section 14 (3) of the Act provides, that the preliminary assessment in case of heinous offences under section 15 shall be disposed of by the Board within a period of three months from the date of first production of the child before the Board. But, in view of the recent judgment of the Hon'ble Supreme Court of India in Criminal Appeal No. 2411 of 2024 decided on 7.5.2024 in Special Criminal No.3033 of 2024 CHILD IN CONFLICT WITH LAW THROUGH HIS MOTHER v. THE STATE OF KARNATAKA AND ANOTHER, it is held that, such a period so prescribed is directory and not mandatory.
29. On reading the aforesaid provision of law, when the child-accused is produced before the JJB, mandatorily, the JJB has to follow the following procedures before transferring the case to the Children's Court. Once the JJB satisfies that the juvenile is in between 16-18 years, it has to transfer the case to the Children's Court.
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 Procedures to be followed by Children's Court when a CCL between 16-18 years allegedly commits Heinous Offence is described in a pictorial manner as under.
On receipt of preliminary assessment from JJB (Section
15), the Children's Court may decide (Section 19) There is a need for trial of the There is no need for trial of child as an adult as per the the child as an adult and may provisions of CrPC, 1973 and conduct an inquiry as JJB and pass appropriate orders after pass appropriate orders in trial subject to the provisions of Section 21 considering the accordance with provisions of special needs of the child, the Section 18 {Section 19(1)(ii)} tenets of fair trial and maintaining a child friendly atmosphere. {Section 19(1)(i)} Children's Court shall ensure that the final order, with regard to child shall include an individual care plan for rehabilitation of child, including follow up by PO or by DCPU or a social worker {Section 19 (2)} Children's Court shall ensure Reports {Section 19 (4)} Children'sICourt shall that there is a periodic follow shall be forwarded to the ensure that the child up report every year by the PO Children's Court for record who is found to be in or the DCPU or a social worker, and follow up, as may be conflict with law is as required, to evaluate the required. {Section 19 (5)} sent to a Place of progress of the child in the Safety till he attains place of Safety and to ensure the age of 21 years that there is no ill-treatment to and thereafter, the the child in any form. {Section person may be 19 (4)} transferred to a jail.
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 Thus, on reading the above provisions of the Act, it is very much necessary to follow the following Guidelines by the Juvenile Justice Board.
1. Age enquiry of the CCL.
i) Conducted as per Sec.94 of the Act.
ii) Primarily the age can be determined on the basis of appearance of Child.
iii) In case the age cannot be so determined, the Act provides that the age is to be determined, firstly on the basis of date of birth as mentioned in school Certificates/ Matriculation Certificates/equivalent certificates from concerned examination board.
iv) If such Certificates are not available, then on the basis of birth certificate given by corporation or Municipal authority or Panchayat.
v) If the Municipal record is also not available, then the age is determined by ossification test or any other latest medical age determination test conducted by orders of the committee or the Board such medical test has to be concluded within 15 days of the order.
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021
2. JJB has to receive social investigation report:-
i) The report should includes information regarding the antecedents; family back ground and other material circumstances in which the offence was committed.
ii) Based on this report JJB can take decision in best interest of the CCL.
iii) It is to be prepared by Probation Officer and if he is not available, then by Child welfare officer/social worker.
iv) It has to be prepared within 15 days from the date of first production of the CCL before JJB.
3. JJB to consider 4 aspects while assessing a minor.
i) Physical capacity of the minor to commit the offence.
ii) Mental capacity of the minor to commit the offence.
iii) Ability to understand the Consequences of the alleged offence.
iv) Circumstances under which the offence was allegedly committed.
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4. JJB has to refer the report of Psychologist as well as expert opinion.
5. CCL is to be thoroughly examined, just one time examination is not sufficient to transfer the case to Children's Court.
Following Guidelines are to be followed by the Children's Court
1. After transferring any POCSO case from JJ Board to Children's Court, the Children's Court is required to take a fresh enquiry and adjudicate as to whether he should be tried as an adult or not/ maturity test.
2. As per Sec.19 of the amended Act, a Children's Court has to ensure that the Child in conflict with the law is sent to a 'Place of safety' until he reaches the age of 21 years, and is only then transferred to jail.
3. Children's Court can also order the conditional release of the Child after he attains the age of 21 years.
4. If Children's Court relies upon the Psychologist report then it is a duty of the Court that if juvenile wants to cross- examine the Psychologist, then the court
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 has to give chance to cross-examination of a Psychologist, if not given then it is against natural justice.
5. Preliminary assessment of mental and Physical capacity of juvenile to commit heinous offence must be concluded expeditiously.
30. Now, as could be seen from the records of this case, the CCL was produced before the JJB on 17.4.2018 at 7:30 p.m. He was remanded to Observation Home till 20.04.2018. Thereafter, he was produced before the JJ Board on 20.4.2018 and subsequent days on 1.06.2018, it was ordered by the JJ Board on hearing both the sides with regard to the preliminary assessment. The DIMHANS, Dharwad was requested to give the preliminary assessment report. It was ordered that, CCL shall be subjected to preliminary assessment with regard to his mental and physical capacity to commit the alleged offences, ability to understand the consequence of the offences and the circumstances in which he allegedly committed offences by Psychologist of remarks from
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 DIMANS Dharwad. Accordingly, necessary direction was issued to the concerned authorities. Subsequently, charge sheet came to be filed by the investigation officer on 03.7.2018.
31. The Trial court records reveal that, the President of the JJB took cognizance of the offence. After receipt of the report from the Psychologist, DIMANS, 2nd bail application came to be filed by the CCL and bail was granted to him on 14.9.2018. On the same day itself, a detailed order came to be passed under section 15, Section 18(3) of JJ Act, 2015 holding that, age of CCL is 16 years, 10 months, resident of Masur and case against him be transferred to Children's Court for trial of the offences for which he has been charged. During the course of the order at paragraph 8, the learned JJ Board has passed an order and observed as under:
''The Psychologists at DIMHANS, Dharwad, after mental assessment of CCL with regard to ability to understand the consequences of commission of offences have opined that, there is no history suggestive of any diseases or trauma or surgery of or medications use which
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 may affect potency. There is no history suggestive use of any legal or illegal substances which may alter his behaviour. They ultimately formed an opinion that after comprehensive Psychologist assessment, there is nothing to suggest that the above person is Psychological incapable to perform the sexual act. This report makes it clear that, CCL is mentally able having physical capacity to commit the alleged offences and also ability to understand the consequences of offences, which he allegedly committed the offences in question. Even, that apart DNA test placed on record by the IO also discloses that he can perform the sexual intercourse. These materials, at this juncture, point out that CCL is mentally able person to commit the alleged offences and he is having mental capacity and ability to understand the consequences of commission of alleged offences. Therefore, in our considered opinion, this is a fit case to transfer it to Children Court for trial of the alleged offences''.
32. After transfer of the case to the Special Court, that is, Children's Court on 5.8.2019, the Children's Court passed an order stating that, date of birth of CCL is 4.6.2001 as per certificate issued by the Headmaster, Government Primary School, Siddheshwar nagar, Masur.
He has completed the age of 16 years, 10 months, 11 days, as on date of offence. It is a serious and grave offence committed upon victim minor girl by CCL.
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 Therefore, this CCL has to face trial of this case as an adult as per provisions of Section 19 of JJ Act. The Children's Court will ensure that at the time of passing final order, it is going to consider about rehabilitation of a child and other measures and provisions of section 21 of the said act.
33. It is observed by the JJ Board that, by looking into the provisions of Section 19 of JJ (CPC) Act and gravity of offence committed by CCL upon victim minor girl, based on report of JJ Board and others, this Court is of the opinion that, "the trial of this case has to be conducted against CCL as an adult accused, as contemplated under the said provisions".
34. After transfer of the case, the learned Children's Court also has considered the findings of the JJ Board, and after satisfaction proceeded with trial by passing detailed order.
35. The learned Children's Court has considered the birth certificate issued by the Headmaster, where the
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 CCL was studying at the relevant point of time. While marking this birth certificate, marked at Ex. P13, no little finger or objection was raised by the CCL. That means, this Ex.P.13 is dated 25.4.2018 is collected by the Investigation Officer wherein the Head master has issued the birth certificate as per the records maintained in the school, stating that a CCL was born on 4.6.2001. Thereby, calculated the age of the CCL as 16 years 10 months 11 days, as on the date of the commission of the offence.
36. From the conjoint reading of the aforesaid provisions of the Act and the Rules framed in the year 2016, in our opinion, wherever words "Children's Court"
or "Sessions Court" mentioned both should be read in alternative. In the sense where Children's Court is available even if the appeal is said to be a maintainable in the Sessions Court, it has to be considered by the Children's Court.
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37. Though it is argued by the counsel for the appellant that, no opportunity is given to the appellant while assessing his exact age, the report so submitted by the DIMHANS authorities do establish that, after medically examining the appellant and after following all the medical formalities, a report was submitted stating that, CCL was aged 16 years 10 months 20 days. The JJ board has rightly assessed the report, evaluated the same and based upon Ex.P.13 birth certificate issued by the school authorities, as on the date of the commission of the offence CCL was aged 16 years 10 months 20 days. For the first time before this court, the appellant has raised this question. No doubt, there is no bar for raising this question before this court in the first appellate Court. But in view of the evidence placed on record by the prosecution and also the non denial of the fact of the age of the CCL as was aged 16 years 10 months 20 days as on the date of commission of offence by him would establish that, for the sake of objections this question is raised before this court. There is no
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 effective cross examination directing either to the Investigation officer or to the Doctor who has medically examined the CCL.
38. PW.8 Dr.Praveen Kumar K.S., the Medical Officer, Government Hospital, Davanagere, says that, he has issued Ex.P.15 after medically examining the CCL and he identifies his signature, etc., Thus, on perusal of all these aspects, they do suggest that, as on the date of commission of offence CCL was aged 16 years 10 months 20 days. His date of birth is a conclusive proof showing his date of birth as 4.6.2001. Therefore, now the appellant cannot contend that, he has not been given any opportunity and there is a violation of the principle of natural justice i.e., audi alteram partem by applying A.R.Anthony's case etc., There is no substance in the submission of the counsel for the appellant that, there is no proper assessment of age of the CCL by the JJ board.
39. It was ordered by the JJ Board that, the Doctors of DIMHANS are requested to give their findings to give
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 their preliminary assessment, ability to understand the consequences of the offences and the circumstance in which he has allegedly committed the offence, by psychological test at Dharwad. This report is not challenged by the appellant by preferring an appeal before the Session's Court. Thus, the said report has become final.
40. In view of all these factual features, it can very well be stated that, the CCL was aged 16 years 10 months 20 days as on the date of the commission of the offence and as per the provisions of the JJ Act, 2015 and Rules 2016, he was rightly tried by the Children's Court. Before the Children's Court, no objections were raised by the CCL. The silence on the part of the CCL goes against his own defence now set up in this appeal. In our considered opinion, the JJB and the Children's Court having followed the aforesaid guidelines if not all, but, all relevant guidelines and have proceeded with trial of the case in accordance with Law. We do not find any factual
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 or legal error by the JJB and Children's Court. Therefore, point no.1 raised supra is answered against the appellant holding that, CCL was rightly tried by the Children's Court as an adult.
41. So far as the judgment of conviction and order of sentence passed by the trial Court is concerned, it is argued that, there is no proper evidence led by the prosecution and the witnesses examined are all interested witnesses. Therefore, their evidence cannot be accepted.
42. Ex.P.1 is the complaint, wherein the complainant the mother of the victim girl has stated that, on 15.4.2018 being Sunday, she had been to the house of her parents along with the victim girl. When her child victim girl was playing, this CCL came there had a talk with complainant and took the victim girl with him. In the evening hours, when complainant wanted to answer her nature's call and went towards the hillock area, she noticed that CCL by removing his clothes so also
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 removing the clothes of the victim girl was sexually intercourse with the victim girl. It was 6.30 p.m. at that time. She noticed the illegal act of the CCL and scared herself and went there and made the CCL to get up. CCL went away by wearing his pant. On noticing the private part of the victim girl, she noticed that there was tenderness and pain and the said private part of victim girl had become red colour. Thus, it is alleged that, the complainant is an eye witness to the incident. At that time, she was accompanied with her mother. Thereafter, she lodged a complaint at 10.00 p.m. by appearing before the Hirekerur Police Station, which is registered in Crime No. 119 of 2018 for the aforesaid offences.
43. It is the case of the prosecution that, after filing the complaint, the police came to the scene of offence, conducted the spot panchanama, took the photographs as per Ex.P.3 to P5. While marking these photographs, no objections were raised by the defence. Ex.P.6 is the scene of offence panchanama, wherein it
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 shows that, where exactly the said offence has taken place. It is accompanied with this sketch. Exs.P7, P8 are the photographs showing that, it was CCL who had shown the scene of offence to the Panchas and Investigating Officer. This fact is also not disputed by the defence. Ex.P9 is the CD, P.10 is a site sketch prepared by the Engineer. To show that, it is the victim girl belongs to the backward class from the office of the Tahsildar, Ratti Halli, the certificate has been obtained by the Investigating Officer, showing that victim girl belongs to Hindu (Thalwar) being the Scheduled Tribe. Ex. P12 is the birth certificate of a victim girl showing her date of birth as 5.10.2015. This certificate of birth is not disputed. It shows that the victim girl was a baby when the said incident has taken place. Ex. P13 is the birth certificate issued by the Headmaster of Masur Government Primary School. To show that CCL belongs to Nekar community, a certificate from Rattihalli Tahsildar is obtained as per Ex.P.14. These documents so marked in this case are not disputed by the defence.
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44. To show that CCL was capable of sexual intercourse a note sheet is produced at Ex. P15. This shows that CCL was medically examined by the Doctor. Ex.P.16 is the letter addressed by the Medical Officer, Taluka Government Hospital to the Forensic laboratory for giving opinion. Ex.P.17 is a Medico Legal Examiner's report of a sexual violence of victim girl. Before the Doctor, it was narrated by the mother - complainant that CCL was aged 16 years, 10 months 20 days used to play with victim girl, carried her to the backyard of his house at 6:30 p.m. and undressed her, removed her panty and was found sleeping on the girl with his pant open and by lying was trying to have a sexual intercourse with the girl. Mother with the other relative tried to catch the CCL and brought to the police station.
45. On medically examining the victim girl, it was opined by the Doctor that, the other parts of the body of the victim girl was found to be normal, but, "it was noticed that ''inner aspect of upper arms, tenderness and
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 contusion over the private part". The Doctor has given an opinion that, there are "evidences suggestive of a forceful sexual act." Though the Forensic Laboratory has given a certificate of examination, it was opined that semen stains were not detected in item nos.1, 2, 3, 4, 5, 6, 7, 8, 10 and 11 and skin tissue was not detected in item no.9. But the evidence of PW.1 complainant is not falsified by the defence. She is an eye witness. So also to show that, where exactly the said offence has committed, the letter issued by the Gram Panchayat, Masur, is produced at Ex. P.19.
46. So far as the oral evidence is concerned, PW.1 being the complainant reiterated the contents of the complaint in her evidence on both. She is consistent in her evidence that, her child victim girl was aged two and half years when the incident took place. She had been to Masur Village, to her parent's house, as she used to have a frequent visit to her parents house. She was knowing this CCL. According to her evidence, whenever she takes
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 her child, victim girl to her parent's house, the CCL used to take the victim girl with him and used to bring her back. She states, that on 15.04.2018 Sunday at 6.00 p.m., CCL came to the house of her parents. At that time, victim girl was playing on the Katta in front of the house. He took her towards backyard, towards the Siddappana Gudda. Even after half an hour, he did not return. When she went to attend her nature's call and proceeded towards Siddappana Gudda, she noticed in the backyard of the house of the CCL, that the CCL has removed his pant and also the under garment of her victim daughter and was doing the sexual intercourse. On seeing her, he worn his pant and went away. She told that, she had faith in him but he is doing this illegal act. She bet him. She noticed that the victim's private part has become red in colour. Thereafter, she came to the house, took her mother with her and lodged a complaint thereafter.
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47. Though this P.W.1 has been directed with severe and intensive cross-examination but nothing worth is elicited. The defence that has been set up by the accused CCL is that, as the father of the CCL used to consume alcohol and do galata, therefore, the complainant being aggrieved by the galata, the CCL has been falsely implicated. But this suggestion is flatly denied by PW.1 in material particulars. Though lengthy cross examination is directed to her but nothing worth is elicited to disbelieve her version given in her examination
-in-chief.
48. PW2 Girish Bhimappa Olekar is the PDO who has issued the Ex.P.6. He was also pancha to the panchanama. His presence at the time of Panchanama and Ex.P.6 is not disputed by the defence. Through the evidence of PW.2, panchanama Ex.P.6 is duly proved in accordance with law.
49. PW.3 Manjamma Nagarajappa Vaddar is none other than the mother of the complainant. She
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 corroborated the evidence of P.W.1 in material particulars. From her evidence, it can be stated that she is not an eyewitness and came to know about the said fact only through her daughter. Though she has been cross examined at length by the defence, but nothing worth is elicited so as to disbelieve her version given in the examination in chief.
50. PW.4 Sujata Basavaraj Bhuvi is the sister of the complainant and she too is not a witness, but she has signed the panchanama as per her evidence. Her evidence can be believed to the extent that, she came to know about the said incident through her sister.
51. PW.5 Jagdish Jayappa Baligar is none other than the husband of P.W.1 - complainant. As he is not an eyewitness, much value cannot be attached to the evidence of PW.5.
52. PW.6 Ranjitha Maravalli is a relative of complainant and she came to know about the said incident through P.W.1 only. She heard the noise of P.W.1
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 according to her evidence. This fact is not denied by the defence. She has deposed ignorance in the cross examination.
53. PW.7 Subhash Chandra Shivappa, was an Engineer at the relevant time who has issued Ex.P.10 the sketch. The contents of the sketch are not denied in the cross examination.
54. PW.8 Dr. Praveen Suresh Rao Kumar is Medical Officer, who has medically examined CCL on 16.4.2018. He noticed no injuries on the body of the CCL during his medical examination. According to his evidence, CCL was capable to perform sexual intercourse. This fact is not denied in the cross examination.
55. P.W.9 Dr.Netravati Narayan Sirsikar was the Doctor at the relevant time, who medically examined the victim girl after obtaining the consent from the victim's mother, she conducts the examination of victim girl. During her general physical examination, she has not found any injuries on the body. But during the genital
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 examination, she noticed tenderness and contusion on the perineum. She did not mention about the hymen as it was infantile (very small). There was tenderness and reddish congestion present on Urethra and external genetalia. She collected the clothes of the victim and swab from perineum and vagina for the purpose of chemical analysis.
56. According to her clinical opinion, there are evidence suggestive of forceful sexual act on the victim girl. The victim being aged two and half years, not in a position to explain the history, but the victim was saying the name as "CtÚ" and also saying ''CtÚ ®ªï ªÀiÁrzÀ, CtÚ£À À ÀÄ ¹zÉÝñÀ JAzÀÄ ªÀÄUÀÄ ºÉüÀÄwvÀÄÛ". This fact was stated by the ºÉ¸g Doctor is not denied by the defence in material particulars. Except denial nothing is elicited.
57. P.W.10 Anil Kumar Boomreddy was the Investigation Officer at relevant time. According to him, on taking up the investigation, he conducted investigation and obtained various documents i.e., more
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 importantly, the personal details of the CCL, showing date of birth, etc., No effective cross examination is directed to this witness to disbelieve that, the investigation is not proper. Even the law says that, even if the investigation is perfunctory, if there is a cogent evidence led by the prosecution, that will not come in the way of finding the accused guilty.
58. P.W.11 Hulgappa Hanamappa Vaddar, was the PSI at the relevant time, who registered the crime and set the law in motion.
59. Thus, on cumulative reading of the evidence led by the prosecution and also the submission of the both the side, It can be stated that, in the light of our findings and the reasons, as discussed for arriving at such a finding, we accept the findings of the JJB of holding that, the CCL was an adult, was to be tried as an adult member, and accordingly, the JJ Board is right in finding the CCL as an adult accused. We accept that, the date of birth of the appellant CCL as mentioned in the
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 certificate issued by the headmaster of Masur School dated 20.5.2018 is correct. A copy of which is produced before this court is to be accepted for determining the age of the CCL at the time of Commission of the offence of which he has been convicted. Going by that certificate, his age at the time of commission of the offence was 16 years, 10 months, 20 days. Thus he was a juvenile on the date of the commission of the offence and he was rightly tried by the Children's Court and Children's Court has convicted him in terms of the provisions of the Juvenile Justice Act 2015. This shall be deemed to be the true age of the CCL, who was tried and convicted.
60. The following table shows the quantum of sentence imposed on CCL:
Sl.No. Offence Sentence and fine
1. Section 366 of Rigorous imprisonment for
a period of 5 years and
IPC
shall pay fine of Rs.
2000/-. In default of
payment of fine amount,
the accused shall undergo
simple imprisonment for
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CRL.A. No. 100145 of 2021
further period of one year.
2. Section 6 of Rigorous imprisonment for
a period of 10 years and
POCSO Act.
shall pay fine of Rs.
5000/-. In default of
payment of fine amount,
the accused shall undergo
simple imprisonment for
further period of 6
months.
3. Section 3(2) (v) Undergo life imprisonment
and shall pay fine of Rs.
of The Scheduled
5000/-. In default of
Castes and payment of fine amount,
the accused shall undergo
Scheduled Tribes
rigorous imprisonment for
(Prevention of further period of five
years.
Atrocities) Act,
1989.
61. The CCL was also tried by the trial Court for the alleged offence under Section 3(2)(v) of The Schedule Caste and Schedule Tribes (Prevention of Atrocities Act), 1989. On scrupulous reading of the entire evidence placed on record by the prosecution either PW.1 or any other witnesses including the IO have stated in their respective evidence that CCL was knowing that the
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 victim baby belongs to the Scheduled Tribe. Except producing the caste certificate of the baby as per Ex.P11 and of her mother, no other evidence is placed on record by the prosecution. Even during the course of the argument, no such submission was made by the prosecution.
62. On reading the provisions of Section 3(2)(v) of the aforesaid Act, it is a mandate that the accused must have knowledge about the caste of the victim. In this case, the victim baby just 2 1/2 years of age and had no sense of its caste. So also accused is a juvenile aged in between 17 and 18 years as per the evidence placed on record. Unless the accused knew about the caste of the victim, this provision as amended in the year 2016 has no application. Therefore, the prosecution has utterly failed to prove the offence against CCL under section 3(2)(v) of the SC & ST (Prevention of Atrocities) Act, 1989. Therefore, the CCL is to be acquitted for the aforesaid offence by giving benefit of doubt.
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63. The learned counsel for the appellant Sri S.D.Babaladi submits that, the offence alleged to have been committed by the CCL he was in between 17 and 18 years and a boy having good future. He is coming from a poor family belonging to Nekar community. Even his family life is not conducive because of conduct of his father. It has come in the evidence that his father is a drunkard. So looking to the family status and the age of the CCL, he submits to show some leniency in imposing the sentence by modifying the sentence already imposed by the trial Court.
64. As against this submission, the learned Addl. SPP submits that taking into consideration of all the aspects of the case and considering the mitigating circumstances, the trial Court has rightly sentenced the CCL. Therefore, he submits not to interfere to the said sentence.
65. As submitted by the learned counsel for the CCL, except the age and family background of the CCL,
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 there are no mitigating circumstances brought on record by the defence.
66. As there is cogent and acceptable evidence lead by the prosecution, we do not find any factual or legal error in finding the accused guilty of the commission of the aforesaid offences. Therefore, in view of the discussion made above on various points for consideration, we do not find any factual error or legal error committed by the Trial Court in finding the accused guilty of committing the offences.
67. At this stage, this court is obliged to observe that; the Juvenile Justice Boards (JJBS) and Children's Courts shall have to follow the guidelines to assess the age of the Juvenile and shall take appropriate steps in accordance with law. We request all the JJB's and Children's Court to follow the same as narrated in the course of this judgment.
68. In view of above discussion, the appeal succeeds in part. The accused-CCL is entitled for
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NC:2024:KHC-D:7986-DB CRL.A. No. 100145 of 2021 acquittal for the offence under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989.
Resultantly, we pass the following:
ORDER
i) Appeal is allowed in-part.
ii) The Judgment of conviction and order of sentence dated 09.04.2021 passed by the Additional District and Sessions Judge, FTSC-1, Haveri for the offences under Sections 366 of IPC, Section 6 of the POCSO Act is confirmed.
iii) Whereas, the order of conviction and sentence passed for the offence under Section 3(2) (v) of The Schedule Caste and Schedule Tribes (Prevention of Atrocities Act), 1989 dated 09.04.2021 passed by the Additional District and Sessions Judge, FTSC-1, Haveri is hereby set aside and the consequently, the - CCL is acquitted of the said charges.
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iv) The recommendation made by the Trial Court to decide about the quantum of compensation to be awarded to the victim remains undisturbed.
v) Copy of this judgment be circulated to all the Juvenile Justice Boards (JJBs) and the Children's Courts in the State for necessary guidance as well as to the Karnataka Judicial Academy Bangalore for reference.
vi) Send a copy of this judgment along with original records to the trial court also copy of the judgment to the concerned Superintendent of Jail for reference and necessary action.
We place on record the appreciation for the assistance rendered by Ms. Shreya Sunil Utture, Law Clerk-Cum-Research Assistant.
Sd/-
JUDGE Sd/-
JUDGE PSJ/Sk/-