Karnataka High Court
Govindraj S/O Ninganna vs The State Through on 24 February, 2022
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24 TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION NO.200061/2016
BETWEEN:
Govindraj, S/o Ninganna
Age : 16 years, Occ:Agriculture
Through Elder Brother
Eankobh S/o Ninganna
Age : 30 years, Occ:Agriculture
R/o Baichbal Village, Tq.Shorapur
Dist. Yadgiri.
... PETITIONER
(By Sri.Ravi K. Anoor for
Sri Avinash A Uploankar, Advocate)
AND:
The State Through
Kembhavi Police Station
Dist:Yadgiri
... RESPONDENT
(By Sri Gururaj V. Hasilkar, HCGP)
This Criminal Revision Petition is filed under Section
401 of the Cr.P.C. praying to call for the records and
examine the records in J.C.No.06/2012 and set aside the
judgment passed by the learned Juvenile Justice Board at
Yadgiri in J.C.No.06/2012 dated 4 th July 2014 and further
2
the same being confirmed by the Sessions Judge at Yadgiri
in Crl. Appeal No.05/2014 by judgment dated 20th August
2016.
This Revision Petition coming on for hearing this day,
the Court made the following:
ORDER
The present Revision Petition is filed challenging the order passed in J.C.No.06/2012 dated 04.07.2014, on the file of the Juvenile Justice Board, Yadgiri, with the following prayer:
"Call for records and examine the records in J.C.No.06/2012 and set aside the judgment passed by the learned Juvenile Justice Board at Yadgiri in J.C.No.06/2012 dated 4th July 2014 and further the same being confirmed by the Sessions Judge at Yadgiri in Crl. Appeal No.05/2014 by judgment dated 20th August 2016."
2. Brief facts of the case are as under:
The Revision Petitioner was charge sheeted for the offence punishable under Section 376 IPC read with Section 7 of the Protection of Civil Rights Act, 1955.3
A complaint came to be filed by the victim on 19.03.2007 that when her mother and her aunt were on the land for plucking cotton, they had been to the land belonging to Mattad and at that juncture, one Tarabai had also come to the land and all were plucking the cotton. At about 3.00 p.m., the mother of the complainant asked her to bring water in pot and accordingly, she went to Kowali Halla stream at Baichbal Village and when she was collecting the water, the Revision Petitioner (hereinafter referred to as 'Juvenile'), came there for washing the cattle. When she took the pot on her head and proceeding towards the land, after proceeding for some distance, the Juvenile came from behind and pulled the pot and took her forcibly into the bushes and held her hands tightly and committed forcible sexual intercourse. The victim girl raised hue and cry for help. At that juncture, her mother and her aunt Shekawwa rushed to the spot. On seeing them, the Juvenile ran away. A complaint came to be lodged and after thorough investigation, charge sheet 4 came to be filed against the juvenile for the aforesaid offences.
3. The presence of the Juvenile was secured before the Juvenile Justice Board (hereinafter referred to as 'the JJB' for short) on 22.03.2007 and he was released on bail. After receipt of the final report cognizance was taken by the Board and charges were framed. Juvenile pleaded not guilty and trial was held.
4. In order to prove the case of the prosecution, prosecution in all examined 10 witnesses as PWs.1 to 10 and 11 documents were relied on, which were exhibited and marked as Exs.P1 to 11. Thereafter, the statement of Juvenile was recorded as contemplated under Section 313 Cr.P.C. wherein he has denied all the incriminatory materials but did not chose to lead defence evidence nor place any written submissions on record. Thereafter, JJB heard the parties in detail and convicted the Juvenile and passed the following order of sentence: 5
"Acting U/Sec.15 of Juvenile Justice Act (Care and Protection of children Act 2000), the juvenile is found guilty and convicted for the offence punishable U/sec.376 of IPC and he is sent to the special home for 3 years and the juvenile is acquitted for the offence punishable U/sec.7 of PCR Act.
The ball bond and surety bond shall stands cancelled.
Juvenile is sent to the special home to serve the sentence.
Juvenile is entitled set off in respect of detention during the period of enquiry and trial."
5. Being aggrieved by the same, the Juvenile preferred an appeal in Criminal Appeal No.05/2014. Learned Judge in the First Appellate Court after securing the records and hearing the parties in detail, dismissed the appeal and confirmed the order passed by the JJB.
6. Thereafter, the Juvenile has preferred this Revision Petition. In the Revision Petition, the following grounds have been raised:
"That the impugned judgment and order of conviction and sentence recorded by the learned 6 Trial Judge is contrary to law, facts and evidence on record. Hence the same is liable to be set aside.
The reason assigned by the learned Trial Judge while passing the impugned judgment and order of conviction and sentence are erroneous and as such he has slipped into an error and passed the impugned judgment, order of conviction and sentence, resulting in substantial miscarriage of justice to the case of appellant.
That, there is no reasonable grounds believe that the appellant has committed the above offence which is evident from perusal of complainant.
That, the averments of the complaint appears to be very flimsy and from reality.
That, as per the records itself the age of the victim was 17 years and 9 months and it is a definite case of consensual sex as the said offence has taken place prior to amendment dated 03.02.2013 and in view of the girl being aged more than 16 years is a crucial aspect which is overlooked by the courts below.
That, even going through the entire content of the evidence of record there is no reasonable grounds to believe that the appellant has committed an offence punishable U/s 376 of IPC.7
That, the Doctor's certificate belies the version of the complainant clearly creating the doubt regarding the occurrence of the incident.
That, as per the Doctor's certificate the girl is aged about 17 years and it is explicitly clean that the girl is acquainted to the act of sexual intercourse fortifying the stand of an act of mutual consent."
Reiterating the above grounds, learned counsel for the Revision Petitioner contended that the order passed by the JJB is incorrect and against the materials on record and sought for allowing the Revision Petition in toto. Alternatively, he contended that the sentence to undergo three years imprisonment is incorrect and sought for passing appropriate orders in terms of Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as 'JJ Act' for short).
7. An affidavit is also filed in this regard that the Revision Petitioner, who is now adult is required to do communal services in Yadgiri District. A copy of the 8 affidavit is served on the learned HCGP and original is placed on record.
8. Per contra, learned High Court Government Pleader opposes the Revision grounds contending that the statement of the victim girl has been properly appreciated by the JJB by holding that Juvenile is guilty of the offence punishable under Section 376 IPC and therefore, Revision Petition needs to be dismissed.
9. In view of the rival contentions urged on behalf of the parties, the following points would arise for consideration:
1. Whether the finding recorded by the JJB that the Revision Petitioner is guilty of the offence punishable under Section 376 IPC read with Section 7 of the PCR Act, 1955 is suffering from legal infirmity, perversity and thus, calls for interference?
2. Whether the sentence is inappropriate in view of Section 15 of JJ Act?9
10. In the case on hand, in order to prove the case of the prosecution, victim girl was examined as PW.1 and her mother and aunt were examined as PWs.2 and 3. Tarabai, who is the circumstantial evidence is also examined as PW.4. Dr. Gowri Shankar, who issued Medical Certificate vide Ex.P9 is also examined as PW.5. No useful materials are elicited so as to disprove the case of the prosecution. Victim girl categorically supported the case of the prosecution by deposing with graphic details in line with the complaint averments. Medical Report marked at Ex.P9 sufficiently corroborates and same and it has been rightly appreciated by the JJB. In Ex.P9, mere mention that there was no traces of recent sexual intercourse would not demolish the case of the prosecution. The JJB relied on the judgment of the Hon'ble Apex Court reported in (2008) 2 SCC (Cri) 253, wherein it has held as under:
"2008 (2) Supreme Court Cases (Cri) 253:
Sec.376 and 375-Medical evidence not corroborating the alleged forced sexual intercourse- Conviction based solely on oral evidence of prosecutrix not disclosing evidence of sexual 10 intercourse-No injury marks on accused or prosecutrix-But oral testimony of prosecutrix-found to be cogent, reliable, convincing and trustworthy as her evidence stood corroborated by other PWs and narration of events in the FIR-No interference with conviction called for.
The Hon'ble Appex court held that, if there is any lapse in the medical evidence cannot be the ground to acquit the juvenile."
11. Again, the JJB has relied on the judgment of the Hon'ble Apex Court reported in AIR 2014 SC 1649 and has held as under:
"AIR 2014 Supreme Court Page No.1649: In para No.38 of judgment the Hon'ble Apex Court held in sentencing column that, the Board empowered to pass one of the seven dispositional orders U/sec.15 of JJ Act. Advice/Admonition, group counseling, community service, payment of fine, release on probation of good conduct and placing the juvenile under the care of parent or guardian or suitable institution, or sent to a special home for 3 years or less. Whether a juvenile commits serious offence, the Board must report the matter to the State Govt. who may keep the 11 juvenile in a place of safety for not more than 3 years."
12. The appreciation made by the JJB that accused is guilty of the offence punishable under Section 376 IPC is thus based on sound legal principles and conclusion reached by the JJB is based on logical reasons.
13. The materials on record was thoroughly re-appreciated by the learned judge in the first Appellate Court and dismissed the appeal. Accordingly, this Court does not find any legal infirmity or perversity in the finding recorded by the JJB and First Appellate Court that accused is guilty of the offence punishable under Section 376 IPC. Hence, point No.1 is answered in negative.
Regarding point No.2
14. In order to find out whether the sentence imposed by the JJB and confirmed by the First Appellate Court is proper or not, this Court has bestowed its attention to the provisions of Section 15 of the JJ Act, which reads as under:
12
"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 procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973 (2 of 1974):13
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 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, 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, (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 the Board may order transfer of the trial of the case to the Children's Court having jurisdiction to try such offences."
15. In this regard, the law is no longer res integra. This Court in the case of Sri Puneet S. Vs. State of 14 Karnataka reported in 2020(1) KLJ 317 at paragraph Nos.11 and 12, it has been held as under:
11. Be that as it may, as could be seen from the above said provision, the learned Sessions Judge or the Special Judge or the Child Friendly Court, presided over by the learned Sessions Judge have absolutely no power to pass any order u/s. 15 of the Act. It is the statutory power vested with the Board. This has completely lost the sight of the Sessions Judge as could be seen from the order itself.
12. Once the Board comes to the conclusion that the Board has got jurisdiction then the Board shall follow the procedure as contemplated u/s.15 of the JJ Act and to proceed with the trial against the accused. If the Board come to the conclusion otherwise than the above, and after inquiry, the Board is of the opinion that the accused after the preliminary inquiry as contemplated u/s.15, feels that there is a need for trial of the child as an adult, then by giving reasons to the effect that the accused/juvenile is between the age of 16 and 18 years, and he was mentally and physically competent to commit such an offence and he was able to understand the consequences of the offence and also the circumstances in which he has committed the offence, then only the Board shall pass order of transfer of the case to the Children's 15 Court/Sessions Court having jurisdiction to try such offence, as specified under section 18(3) of the said JJ Act."
16. In view of Section 15 of the JJ Act, before imposing the sentence of three years to the Revision Petitioner, the JJB should have ordered any one of the sentence as contemplated under Section 18(a) to (g).
17. Since, the JJB has not followed the same, the sentence needs to be modified by imposing fine of Rs.25,000/- in terms of Section 15(1)(d) taking note of the fact that the Juvenile is now aged 30 years and gainfully employed. Therefore, if some amount of fine is imposed, it would meet the ends of justice. Accordingly, point No.2 is answered and pass the following:
ORDER x The Revision Petition is allowed in part.
x While maintaining the conviction of the Revision Petitioner/Juvenile for the offence punishable under Section 376 IPC, he is ordered to pay fine of Rs.25,000/- and to render community services in Municipal Council, Solapur commencing from 16 15.03.2022. Time is granted to pay the fine amount till 31.03.2022.
x Out of the fine amount received, a sum of Rs.22,000/- is ordered to be paid as compensation to PW.1-victim girl under due identification and balance amount of Rs.3,000/- shall be appropriated towards defraying expenses of the State.
x It is made clear that if he fails to pay the fine amount, he shall continue to render the community services for a period of three years.
x Further, the Municipal Council, Solapur shall file compliance report to this Court about the satisfactory completion of the community services rendered by the Revision Petitioner commencing from 15.03.2022.
x Further, it is only after filing the fine receipt with the JJB and copy before this Court and before the Municipal Council, Solapur, satisfactory report should be filed to the Court.
x Copy of this order is directed to be served on the Municipal Council, Solapur by the learned HCGP attached to this Court.
17Return the trial Court records with a copy of this order forthwith.
Ordered accordingly.
Sd/-
JUDGE KA*