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               REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.    628-629     OF 2013 (Arising out of S.L.P (Crl.) Nos.5059-60 of 2012)

Bharat Bhushan …Appellant

Versus

State of Himachal Pradesh …Respondent

J U D G M E N T

T.S. THAKUR, J.

1. Delay condoned.   

2. Leave granted.  

3. These appeals arise out of judgments and orders dated  

8th April, 2010 and 30th April, 2010 passed by the High Court  

of  Himachal  Pradesh  at  Shimla  whereby  Criminal  Appeal  

No.406  of  1995  has  been  allowed,  the  order  of  acquittal  

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passed by the trial Court set aside, the appellant convicted  

for an offence punishable under Section 376 of the Indian  

Penal Code and sentenced to undergo rigorous imprisonment  

for a period of five years besides a fine of Rs.50,000/-.  In  

default of payment of fine, the appellant has been directed to  

undergo further imprisonment for a period of one year.

4. The  appellant  was  charged  with  commission  of  an  

offence of rape upon a girl hardly 11 years old while she was  

working in the fields along with another girl aged around 10  

years in Village Kanda, District Shimla, Himachal Pradesh.  At  

the trial, the prosecution examined not only the prosecutrix  

who supported the charge but also other witnesses including  

PW-2-her companion whose name is withheld to protect her  

identity and who had escaped an attempted assault by the  

co-accused,  Dinesh  Kumar.   An  alarm  raised  by  PW-2  

appears to have attracted the attention of PW-3-Piar Devi,  

mother of PW-2, who had rushed to the spot to rescue the  

girls,  whereupon  both  the  accused  appears  to  have  fled  

away. PW-5-Misru-the father of the prosecutrix and PWs-7, 8  

and 9 namely Dr. Ajay Negi, Dr. Suresh Bansal and Dr. D.C.  

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Negi  were  also  examined  at  the  trial  all  of  whom  have  

supported  the  prosecution  case  in  their  respective  

depositions. The trial Court, however, came to the conclusion  

that the prosecution had failed to prove its case against the  

appellant, the deposition of the witnesses mentioned above  

notwithstanding and, accordingly, acquitted both the accused  

persons of the charges framed against them.   

5. Criminal Appeal No.406 of 1995 was then filed by the  

State of Himachal Pradesh against the order of acquittal to  

assail the view taken by the trial Court qua the appellant as  

also his companion Dinesh Kumar. The High Court has by its  

judgment and order dated 8th April, 2010 allowed the appeal  

in  part,  reversed  the  view  taken  by  the  trial  Court  and  

convicted the appellant for rape, punishable under Section  

376 of the Indian Penal Code.  As regards Dinesh Kumar, the  

High Court was of the view that the order of acquittal passed  

in his favour was justified. The High Court was of the view  

that  the  prosecution  story  was  reliable  and  inspired  

confidence not  only because of  the  inherent  worth  of  the  

deposition of the prosecutrix but also because of the fact that  

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her story was fully corroborated by PW-2, the other girl who  

escaped from the clutches of Dinesh Kumar, the co-accused  

and that of PW-3 Piar Devi who had rushed to the place of  

occurrence to rescue the victim after hearing an alarm raised  

by her daughter.   More importantly, the High Court found  

that the deposition of Dr. Suresh Bansal who had examined  

the prosecutrix establish the commission of rape upon the  

victim. The appellant was on such re-appraisal of evidence  

convicted under Section 376 of the Indian Penal Code.  

6. The High Court next examined the question of sentence  

to be awarded to the appellant and by separate order dated  

30th April,  2010  sentenced  the  appellant  to  rigorous  

imprisonment for five years and a fine of Rs.50,000/- and a  

default sentence of one year as already noticed above.  What  

is important is that while doing so the High Court noticed and  

rejected the contention urged on behalf of the appellant that  

he was only 16 years and 4 months old at the time offence  

was committed, hence, entitled to the benefit of provisions of  

Section 20 of the  Juvenile  Justice (Care and Protection of   

Children)  Act,  2000. Relying  upon  the  decision  of  a  

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Constitution Bench of this Court in  Pratap Singh v. State  

of Jharkhand and Anr. (2005) 3 SCC 551, the High Court  

held that the benefit of the Act was not legally available to  

the petitioner.

7. The High Court  also relied upon the decisions of this  

Court in Jameel v. State of Maharashtra (2007) 11 SCC  

420, where this Court held that since the appellant in that  

case had completed 16 years of age as on the date of the  

occurrence,  the  Juvenile  Justice  (Care  and  Protection  of   

Children) Act, 2000, Act had no application.  Reliance was  

also placed by the High Court upon the decision of this Court  

in  Ranjit Singh v. State of Haryana (2008) 9 SCC 453  

where this Court had relying upon the Judgment in Jameel’s  

case (supra) rejected the contention that the petitioner was  

entitled  to  the  benefit  of  Juvenile  Justice  (Care  and  

Protection  of  Children)  Act,  2000, since he  was below 18  

years as on the date of the commission of the offence.  In  

conclusion, the High Court held that Section 20 of the 2000  

Act was inapplicable since the accused was over 16 years of  

age at the time of commission of the offence i.e. 22nd June,  

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1993 and over  18 years of  age on 01-04-2001,  the date  

when the 2000 Act came into force.  The present appeal filed  

by the appellant  assails the correctness of the above two  

orders as already noticed earlier.  

8. We have heard learned Counsel for the parties at some  

length.  The legal position regarding the entitlement of the  

appellant  who was more  than  16  years  but  less  than  18  

years of age as on the date of commission of the offence on  

22nd June, 1993, is in our view settled by the decision of this  

Court in Hari Ram v. State of Rajasthan (2009) 13 SCC  

211.  This Court has in that case traced the history of the  

legislation and reviewed the entire case law on the subject.  

Relying upon the decision of the Constitution Bench of this  

Court in  Pratap Singh’s  case (supra), this Court in  Hari  

Ram’s case (supra) reiterated that the question of juvenility  

of  a  person in  conflict  with law has  to  be  determined by  

reference to the date of the incident and not the date on  

which  cognizance  is  taken  by the  Magistrate.  Having said  

that, this Court held that the effect of the pronouncement in  

Pratap Singh’s  case (supra) on the second question, viz.  

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whether the 2000 Act was applicable in a case where the  

proceedings  were  initiated  under  the  1986  Act  and  were  

pending  when  the  2000  Act  came  into  force,  stood  

neutralised by the amendments to Juvenile Justice (Care and  

Protection of Children) Act, 2000, by Act 33 of 2006.  The  

amendments made the provisions of the Act applicable even  

to juveniles who had not completed the age of 18 years on  

the  date  of  the  commission  of  offence  said  this  Court.  

Speaking for the Court  Altamas Kabir, J. (as His Lordship  

then was) observed:

“58.  Of the  two main questions decided in Pratap   Singh case, one point is now well  established that   the juvenility of a person in conflict with law has to   be reckoned from the date of the incident and not   from the date on which cognizance was taken by the   Magistrate.  The  effect  of  the  other  part  of  the   decision was, however, neutralised by virtue of the   amendments to the Juvenile  Justice Act, 2000, by   Act 33 of  2006,  whereunder  the  provisions of  the   Act were also made applicable to juveniles who had   not completed eighteen years of age on the date of   commission of the offence.

59.   The  law  as  now  crystallised  on  a  conjoint   reading of Sections 2(k), 2(l), 7-A, 20 and 49 read   with Rules 12 and 98, places beyond all doubt that   all persons who were below the age of 18 years on  the date of commission of the offence even prior to   1-4-2001, would be treated as juveniles, even if the   claim of juvenility was raised after they had attained   the  age  of  18  years  on  or  before  the  date  of   commencement  of  the  Act  and  were  undergoing  sentence upon being convicted.

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68. Accordingly, a juvenile who had not completed   eighteen  years  on  the  date  of  commission  of  the   offence  was  also  entitled  to  the  benefits  of  the   Juvenile  Justice  Act,  2000,  as if  the  provisions  of   Section  2(k)  had  always  been  in  existence  even   during the operation of the 1986 Act.”

9. These  decisions  have  been  followed  in  several  other  

subsequent  pronouncements  of  this  Court  including  the  

decisions of this Court in Raju and Anr. v. State of Haryana  

(2010) 3 SCC 235, Dharambir v. State (NCT of Delhi) and  

Anr. (2010) 5 SCC 344, Mohan Mali and Anr. v. State of   

M.P. (2010) 6 SCC 669, Jitendra Singh @ Babboo Singh  

and Anr. v. State of U.P. (2010) 13 SCC 523, Daya Nand  

v. State of Haryana (2011) 2 SCC 224, Shah Nawaz v.  

State of U.P. and Anr. (2011) 13 SCC 751 and Amit Singh  

v. State of Maharashtra and Anr. (2011) 13 SCC 744.

10. The attention of the High Court was, it is obvious, not  

drawn to the decision in Hari Ram’s case (supra), although  

the same was pronounced on 5th May, 2009 i.e. almost a  

year  earlier  to  the  pronouncement  of  the  impugned  

judgment in this case.  Be that as it may, as on the date the  

offence  was  committed  the  appellant  was  admittedly  a  

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juvenile  having regard  to  the  provisions of  Sections  2(k),  

2(l), 7-A, 20 and 49 read with Rules 12 and 98 of the Rules  

framed under  the  Juvenile  Justice (Care and Protection of  

Children)  Act,  2000.  He  was,  therefore,  entitled  to  the  

benefit of the said provision, which benefit, it is evident, has  

been  wrongly denied by the High Court  only because the  

High Court remained oblivious of the pronouncement of this  

Court in Hari Ram’s case (supra).   

11. The question then is whether the High Court could have  

at all recorded a conviction against the appellant who as seen  

above was a juvenile on the date of the commission of the  

offence. The answer to that question, in our opinion, lies in  

Section 20 of the 2000 Act which reads as under:

“20.  Special  provision  in  respect  of  pending  cases.- Notwithstanding anything contained in this   Act, all proceedings in respect of a juvenile pending   in any court in any area on the date on which this   Act comes into force in that area, shall be continued   in that court as if this Act had not been passed and   if the court finds that the juvenile has committed an   offence, it shall  record such finding and instead of   passing  any  sentence  in  respect  of  the  juvenile,   forward the juvenile to the Board which shall pass   orders in respect of that juvenile in accordance with   the provisions of this Act as if it had been satisfied   on  inquiry  under  this  Act  that  a  juvenile  has   committed the offence.

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Provided that the Board may, for any adequate and   special reason to be mentioned in the order, review  the case and pass appropriate order in the interest   of such juvenile.

Explanation.- In  all  pending  cases  including  trial,   revision, appeal or any other criminal proceedings in   respect  of  a  juvenile  in  conflict  with  law,  in  any   court,  the  determination  of  juvenility  of  such  a   juvenile shall be in terms of Clause (1) of Section 2,  even if the juvenile ceases to be so on or before the   date  of  commencement  of  this  Act  and  the   provisions  of  this  Act  shall  apply  as  if  the  said   provisions had been in force, for all purposes and at   all  material  times  when  the  alleged  offence  was   committed.”

12. The above makes it manifest that proceedings pending  

against a juvenile in any Court as on the date the 2000 Act  

came into force had to continue as if the 2000 Act had not  

been enacted. More importantly Section 20 (supra) obliges  

the Court concerned to record a finding whether the juvenile  

has committed any offence.  If the Court finds the juvenile  

guilty, it is required under the above provision to forward the  

juvenile  to  the  Board  which would then  pass  an  order  in  

accordance with the provisions of the Act as if it had been  

satisfied  on  enquiry  under  the  Act  that  the  juvenile  had  

committed an offence.

13. Even in  Pratap Singh’s  case (supra), this Court had  

interpreted Section 20 of the 2000 Act, and held that Section  

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20 was attracted to cases where the person, if male, had  

ceased to be a juvenile under the 1986 Act being more than  

16 years of age but had not yet crossed the age of 18 years.  

This  Court  declared  that  it  was  only  in  such  cases  that  

Section 20 was attracted and the Court required to record its  

conclusion as to the guilt or innocence of the accused.  This  

Court observed:

“31.  Section 20 of the Act as quoted above deals   with  the  special  provision  in  respect  of  pending   cases  and  begins  with  non-obstante  clause.  The  sentence  "Notwithstanding  anything  contained  in   this  Act  all  proceedings  in  respect  of  a  juvenile   pending in any Court in any area on date of which   this Act came into force" has great significance. The   proceedings in respect of a juvenile pending in any   court referred to in Section 20 of the Act is relatable   to proceedings initiated before the 2000 Act came  into force and which are pending when the 2000 Act   came into force. The term "any court" would include  even ordinary criminal  courts. If the person was a  "juvenile" under the 1986 Act the proceedings would   not  be pending  in  criminal  courts.  They  would  be   pending  in  criminal  courts  only  if  the  boy  had   crossed 16 years or girl had crossed 18 years.  This  shows  that  Section  20  refers  to  cases  where  a   person had ceased to be a juvenile under the 1986   Act but had not yet crossed the age of 18 years then   the pending case shall continue in that Court as if   the 2000 Act has not been passed and if the Court   finds that the juvenile has committed an offence, it   shall record such finding and instead of passing any   sentence in respect of the juvenile, shall forward the   juvenile  to  the  Board  which  shall  pass  orders  in   respect of that juvenile.”

               (emphasis  supplied)

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14. Reference  may also  be  made  to  the  decision  of  this  

Court in  Bijender Singh v. State of Haryana and Anr.   

(2005) 3 SCC 685, where this Court reiterated the legal  

position while interpreting the provisions of the Act and said:

“8. One of the basic distinctions between the 1986   Act and the 2000 Act relates to age of males and   females.  Under the 1986 Act,  a juvenile  means a   male juvenile who has not attained the age of 16   years, and a female juvenile who has not attained   the age of 18 years. In the 2000 Act, the distinction   between male and female juveniles on the basis of   age has not been maintained. The age-limit  is  18   years for both males and females.

9. A person above 16 years in terms of the 1986 Act   was not a juvenile. In that view of the matter the   question whether a person above 16 years becomes  “juvenile” within the purview of the 2000 Act must   be answered having regard to the object and purport   thereof.

10. In terms of the 1986 Act, a person who was not   juvenile could be tried in any court. Section  20 of  the 2000 Act takes care of such a situation stating   that despite the same the trial shall continue in that   court as if that Act has not been passed and in the  event, he is found to be guilty of commission of an   offence, a finding to that effect shall be recorded in   the judgment of  conviction, if  any,  but  instead of   passing any sentence in relation to the juvenile, he   would be forwarded to the Juvenile Justice Board (in   short  the  'Board')  which  shall  pass  orders  in   accordance with the provisions of the Act as if it has   been  satisfied  on  inquiry  that  a  juvenile  has   committed  the  offence.  A  legal  fiction  has,  thus,   been created in the said provision... xx xx xx

12.  Thus,  by  reason  of  legal  fiction,  a  person,   although not a juvenile, has to be treated to be one   by the Board  for the purpose of sentencing which  takes care of a situation that the person although   not  a  juvenile  in  terms  of  the  1986  Act  but  still   

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would be treated as such under the 2000 Act for the   said limited purpose.”

(emphasis supplied)

15. Section 20 of the 2000 Act fell for interpretation even in  

Dharambir v. State (NCT of Delhi) (2010) 5 SCC 344,  

where too this Court held that the explanation appended to  

the same enables the Court to determine the juvenility of the  

accused even after conviction and that the Court can while  

maintaining the conviction set aside the sentence imposed  

upon him and to forward the case to the Board for passing  

an appropriate order under the Act.  This Court observed:

“11. It is plain from the language of the Explanation   to Section 20 that in all pending cases, which would   include  not  only  trials  but  even  subsequent   proceedings by way of revision or appeal, etc., the   determination of juvenility of a juvenile has to be in   terms of Clause (l) of Section 2, even if the juvenile   ceases to be a juvenile on or before 1st April, 2001,  when  the  Act  of  2000  came  into  force,  and  the   provisions  of  the  Act  would  apply  as  if  the  said   provision had been in force for all purposes and for   all  material  times  when  the  alleged  offence  was   committed.  Clause  (l)  of  Section  2  of  the  Act  of   2000  provides  that  "juvenile  in  conflict  with  law"   means  a  "juvenile"  who  is  alleged  to  have   committed  an  offence  and  has  not  completed   eighteenth year of age as on the date of commission   of such offence. Section 20 also enables the Court to  consider  and  determine  the  juvenility  of  a  person  even after conviction by the regular Court and also   empowers  the  Court,  while  maintaining  the   conviction, to set aside the sentence imposed and   forward  the  case  to  the  Juvenile  Justice  Board   

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concerned for passing sentence in accordance with   the provisions of the Act of 2000.”

16. The  above  position  was  restated  in  Daya  Nand  v.  

State of Haryana (2011) 2 SCC 224 and Kalu @ Amit v.   

State of Haryana (2012) 8 SCC 34.   

17. In the present case, the appellant was not a juvenile  

under the 1986 Act as he had crossed the age of 16 years.  

This case was, however, pending before the High Court in  

appeal on the date the 2000 Act came into force and had,  

therefore, to be dealt with under Section 20 of the Act which  

required the High Court to record a finding about the guilt of  

the accused but stop short of passing an order of sentence  

against  him.  Inasmuch  as  the  High  Court  convicted  the  

appellant, it did not commit any mistake for the power to do  

so  was  clearly  available  to  the  High  Court  under  the  

provisions  of  Section  20.   What  was  not  permissible  was  

passing of a sentence for which purpose the High Court was  

required  to  forward  the  juvenile  to  the  Juvenile  Board  

constituted  under  the  Act.  The  order  of  sentence  is,  

therefore, unsustainable and shall have to be set aside.   

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18. The  next  question  then  is  whether  the  conviction  

recorded by the High Court was justified on merits and, if it  

was, whether we ought to refer the appellant to the Juvenile  

Justice Board at this stage.  Our answer is in the affirmative  

qua the first part  and negative  qua  the second. The High  

Court has, in our opinion, properly appreciated the evidence  

on record especially the deposition of the prosecutrix, her  

companion PW-2 and her aunt Piar Devi-PW-3 as also her  

parents. The High Court has also correctly appreciated the  

medical  evidence  available  on  record  especially  the  

deposition and the report  of  PW-8-Dr.  Suresh Bansal,  the  

relevant portion of whose report reads as under:

“...On examination I found that the female child had   not  started  menstruating.  There  was  painful   separation  of  thighs.   No marks  of  violence  were   present.  Clotted blood was present on labia majora   and  on  thighs.  Secondary  sexual  characters  were   developed.   Breasts  were  developed  according  to  age. Pubic and axillary hairs were present but were   scanty.   Hymen  was  freshly  fractured.  Posterior   fourchette  was  torn.  The  chid  admitted  one  little   finger  with  pain.  The  vagina  was  congested.....   Injury mentioned in MLC Ext. PW-8/C appeared on   the prosecutrix was subject to sexual intercourse...”   

19. The prosecutrix was between 9 to 12 years according to  

the deposition of PW-9-Dr. D.C. Negi and deposition of PW-

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13 who proved her date of birth to be 13th April, 1982. The  

presence of human blood on the cap with which the appellant  

appears to have wiped the blood after the sexual assault is  

also an incriminating circumstance which the High Court has  

rightly taken into consideration while finding the appellant  

guilty.  We, therefore, see no reason to interfere with the  

order of conviction as recorded by High Court on merits.

20. Coming  then  to  the  question  of  reference  to  the  

Juvenile  Justice  Board,  we  are  of  the  view  that  such  a  

reference is unnecessary at this distant point of time. The  

appellant is nearly 36 years old by now and a father of three  

children.  He  has  already undergone  nearly  three  years  of  

imprisonment awarded to him by the High Court.   In the  

circumstances, reference to the Juvenile Justice Board at this  

stage of his life would, in our opinion, serve no purpose. The  

only option available is to direct his release from custody.   

21. In the result, we dismiss criminal appeal arising out of  

SLP (Crl.) No.5059 of 2012 directed against the order of the  

High Court dated 8th April, 2010 and uphold the conviction of  

the appellant for the offence under Section 376 IPC. Criminal  

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appeal arising out of SLP (Crl.) No.5060 of 2012 is, however,  

allowed and the order dated 30th April, 2010 passed by the  

High Court is set aside with a direction that the appellant  

shall  be  released  from  custody  unless  he  is  required  in  

connection with any other case.

….……………...…………J. (T.S. THAKUR)

……….………...……...…J. (DIPAK MISRA)

New Delhi April 26, 2013

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