Punjab-Haryana High Court
Ajeet Singh And Others vs State Of Haryana And Another on 25 October, 2013
CRR No.122 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRR No.122 of 2012 (O&M)
Date of Decision:October 25, 2013
Ajeet Singh and others
...Petitioners
Versus
State of Haryana and another
...Respondents
CORAM: HON'BLE MR.JUSTICE R.P. NAGRATH
1. Whether Reporters of the local papers may be allowed to see
the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the digest?
Present: Mr. S.P. Chahar, Advocate
for the petitioners.
Mr. Manish Deswal, DAG, Haryana
for the State.
Mr. Raj Mohan Singh, Advocate
for respondent No.2.
R.P. Nagrath, J.
Challenge in the instant petition is to the concurrent findings of the Juvenile Justice Board (for brevity 'JJB') and of learned Addl. Sessions Judge in appeal, holding the accusation against the petitioners for offence under Section 377 read with Section 34 IPC to be proved. The other challenge is against the order directing them to perform community service of cleaning General Hospital, Jhajjar for a period of two years from 1.12.2009 to Kumar Suresh 1.12.2011 under the guidelines of Senior Medical Officer, General 2013.11.14 15:27 I attest to the accuracy and integrity of this document Chandigarh CRR No.122 of 2012 2 Hospital, Jhajjar on all working days and during all working hours. Certain more conditions were also imposed in the order to enforce compliance of the aforesaid directions. It was further directed that fathers of each of them would furnish surety bonds to the tune of Rs.50,000/- each, undertaking to abide by the said conditions. Since the order of Juvenile Justice Board was stayed during pendency of appeal, it was directed by the appellate Court that the said period of two years to render community service would be effective from 11.1.2012 to 10.1.2014. The other directions issued by the Juvenile Justice Board have been affirmed in appeal.
2. I have heard learned counsel for the petitioners, learned State counsel and counsel appearing for the complainant and also considered record of Juvenile Justice Board.
3. The incident took place on 29.6.2001 in which 6 years old male child of the complainant was subjected to carnal intercourse against the order of nature by the petitioners. Petitioner No.4 was about 8 years old and the other petitioners 12 to 13 years old at that time.
4. Material witnesses to prove the incident are PW2 the victim himself, PW3 Virender Singh, father and his mother (PW4). PW2 was about 10 years old on the date of his examination by the JJB on 25.3.2005. The Principal Magistrate, JJB generally examined PW2 and certified that he was a competent witness. PW2 testified the whole incident in witness box. He was extensively cross- examined. PW2 stated that his underwear was removed. The Kumar Suresh 2013.11.14 15:27 I attest to the accuracy and integrity of this document Chandigarh CRR No.122 of 2012 3 petitioners also took off their Pyjamas and committed carnal intercourse one by one. PW2 then stated that he cried of pain and it started bleeding. In the cross-examination, PW2 stated that while the petitioners were committing the act, his mother had reached the spot. No other person was attracted to the spot as it was noon time of hot summer. PW2 testified in the cross-examination that their house was at a distance of 10 houses from the spot and when his mother came there, the petitioners had run away.
5. Learned counsel for the petitioners attacked the testimony of PW2 as he admitted in the cross-examination that there is enmity between them. What was, however, the background of enmity was not suggested to the victim, who was examined after 4 years of the occurrence. In the absence of any such specific plea, the incident in question was the only possible reason of enmity between them. Moreover, PW2 and his family cannot have enmity with families of all the petitioners.
6. Mother of the victim as PW4 supported the testimony of her son. She stated that PW2 had gone from the house for playing at about 2 O'clock in the noon. Since PW2 had not returned home for quite some time, she went in search of him. She was present in the street that she heard the shrieks of her son from the side of an uninhabited house of one Hukmi. She saw petitioner No.4 standing at the door of said house. Petitioner No.4 raised an alarm warning his companions that mother of the victim had come. PW4 entered that house and saw that the victim was made to lie on the ground. At Kumar Suresh 2013.11.14 15:27 I attest to the accuracy and integrity of this document Chandigarh CRR No.122 of 2012 4 that time petitioner No.2 had pressed the legs of victim, petitioner No.3 was holding the victim from his hands and petitioner No.1 was committing bad act with her son. These 3 petitioners were found naked. They lifted their clothes from there and ran away from the spot. Petitioner No.4 who was standing at the gate also fled from there with other petitioners.
7. There is no suggestion to PW4 or PW3 father of the victim about any motive for implicating the petitioners falsely except suggesting that there was some enmity between them, which has not been specified.
8. I am also of the view that if there was any prior enmity to falsely implicate the pettitioners, PW2 would not have reiterated all these facts on oath after a period of 4 years of the incident when he was examined.
9. The incident took place on 29.6.2001 and FIR was registered on 1.7.2001. PW3 Father of the victim made statement before the police Ex.PW3/A on the basis of which FIR was registered. PW3 had returned home at about 8.00 PM on 29.6.2001 and the victim while crying narrated the whole incident to him. PW3 held a gathering of the villagers on the next morning and called the boys with their parents. Three boys came with their fathers but petitioner No.1 had not come nor his father attended. Fathers of other petitioners admitted the fault of their sons. However, condition of the victim was deteriorating that he made the statement Ex.PW3/A before the police. In the cross- examination, PW3 stated that his son Kumar Suresh 2013.11.14 15:27 I attest to the accuracy and integrity of this document Chandigarh CRR No.122 of 2012 5 could not sleep for the whole night.
10. PW4 mother of the victim stated that she saw blood around the anal region of her son and also the stains of faeces. The injury kept on bleeding for many days. She had applied oil as her son was feeling pain.
11. The thrust of argument for the petitioners is that medical report does not support ocular version. PW6 Dr. Kumud Sharma medically examined the victim on 1.7.2001 and found no external mark of injury all over the body including anal or perineal region nor there was any bleeding. The anal swabs were sent to the forensic science laboratory but no report was received as per the statement of the doctor. Therefore, without the report, he cannot say whether there was any penetration or not as there was no external mark of injury or swelling on the anal region.
12. Non-presence of injury around anal region on the day of examination of PW4 by the doctor in the circumstances of the case will not defeat the prosecution case keeping in view the ages of the petitioners. There is thus no scope to upset the concurrent findings of both the Courts below on this aspect.
13. Learned counsel for the petitioners relied upon Sandeep @ Kartoon Vs. State of Haryana, 2006(1) HLR 73 and Sanjiv Kumar Vs. State of Punjab, 1989(2) RCR (Criminal) 108 to contend that if there is no medical evidence corroborating the ocular evidence, it is not possible to hold the charge under Section 377 IPC. Those were the cases where allegation of sodomy were made in a Kumar Suresh 2013.11.14 15:27 I attest to the accuracy and integrity of this document Chandigarh CRR No.122 of 2012 6 murder trial and the victim was not available for examination in the court. The charge against the accused in Sandeep's case (supra) was for offences under Sections 302 and 377 read with Section 511 IPC and in Sanjeev Kumar's case (supra), the offences were under Sections 302 and 377 IPC. The victim in Sandeep's case (supra) was 7 years old and in Sanjeev Kumar's case (supra), the victim was 11 years old boy. The accused in those trials were major. In those circumstances, the existence or non-existence of mark of injury on the anal region could be material, but in the instant case, the petitioners were just 11 to 13 years old.
14. So far as petitioner No.4 is concerned, he was just about 8 years old at the time of incident. According to prosecution story, petitioner No.4 was standing outside the house to watch out and warn the persons inside. It is not stated by PW4 that petitioner No.4 was not wearing clothes while standing at the door of the house.
15. Section 82 IPC says that nothing is an offence which is done by a child under 7 years of age. Petitioner No.4 was marginally above 7 years of age.
16. In view of the above discussion, the revision filed by petitioner No.4 is allowed, whereas the revision filed by other three petitioners challenging the findings of the charge against them is dismissed.
17. Coming to the next issue of ordering fathers of petitioners No.1 to 3 to furnish bail bonds and directing them to perform the community service in the Government Hospital, this directions needs Kumar Suresh 2013.11.14 15:27 I attest to the accuracy and integrity of this document Chandigarh CRR No.122 of 2012 7 to be modified. It is mandatory under sub-section (2) of Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 that the Board shall obtain the social investigation report on juvenile either through a Probation Officer or a recognised voluntary organisation or otherwise, and shall take into consideration the findings of such report before passing an order. No such report admittedly was obtained in the instant case.
18. The incident took place about 12 years ago and petitioners No.1 to 3 should be presently around 23 to 24 years old. Under sub-rule (6) of Rule 13 of Juvenile Justice (Care and Protection of Children) Rules, 2007, every enquiry by the Board has to be completed within a period of 4 months after the first summary enquiry and only in exceptional cases involving trans-national criminality, large number of accused and inordinate delay in production of witnesses, the period of enquiry may be extended by two months on recording of reasons by the Board. The case was decided by JJB on 28.11.2009 i.e. after about 8 years of institution of the case. The very purpose of the direction issued by the JJB in the nature of reformation has thus been defeated. These petitioners have become major for over 4 years. In the facts of the case and no social investigation report having been obtained, the direction issued by the JJB deserves to be modified and it is found appropriate to release the petitioners on probation of good conduct on executing personal bonds in a sum of Rs.25,000/- each with two sureties of the like amount including one surety of their respective fathers for a Kumar Suresh 2013.11.14 15:27 I attest to the accuracy and integrity of this document Chandigarh CRR No.122 of 2012 8 period of two years for keeping good behaviour for the said period.
19. It is directed that the bonds of good conduct would be furnished before the JJB within a period of one month from receipt of certified copy of this order by the petitioners or within one month of receipt of copy of this order by the JJB whichever is earlier.
20. Copy of this order be sent to the Juvenile Justice Board, Jhajjar and all concerned.
(R.P. Nagrath) October 25, 2013. Judge sk Kumar Suresh 2013.11.14 15:27 I attest to the accuracy and integrity of this document Chandigarh