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      REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 513 OF 2008

Darga Ram @ Gunga …Appellant

Versus

State of Rajasthan …Respondent

J U D G M E N T

T.S. THAKUR, J.

1. The  appellant  was  tried  and  convicted  for  offences  

punishable under Sections 376 and 302 IPC. For the offence  

of rape punishable under Section 376, he was sentenced to  

undergo imprisonment for a period of 10 years besides a fine  

of  Rs.1000/-  and  default  sentence  of  one  month  with  

rigorous imprisonment.  Similarly, for the offence of murder  

punishable  under  Section  302  IPC,  he  was  sentenced  to  

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undergo life imprisonment besides a fine of Rs.3,000/- and  

default  sentence  of  three  months’  rigorous  imprisonment.  

Both  the  sentences  were  directed  to  run  concurrently.  

Criminal Appeal No.604 of 2004 filed by him was heard and  

dismissed by a Division Bench of the High Court of Judicature  

for  Rajasthan at  Jodhpur.   The present  appeal  assails  the  

impugned judgment and order.

2. A  first  Information  Report  was  registered  at  Police  

Station Rani in the State of Rajasthan on 11th April,  1998,  

inter alia, stating that the complainant on 9th April, 1998  had  

organised a “Jaagran” (night long prayer meet) near a well  

belonging  to one Magga Ram. The complainant and other  

relatives,  in  all  around  50  persons  assembled  for  the  

“Jaagran”  that  continued  till  late  night.  This  included  his  

seven year  old daughter-Kamala who went to  sleep along  

with other children close to the place where the “Jaagran”  

was held.  When he returned to his house he noticed that  

Kamala  was  missing.  Assuming  that  she  may  have  gone  

away with one of the relatives, a search was made at their  

houses but Kamala remained untraceable. The search was  

then extended to neighbouring areas where the dead body  

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of Kamala was discovered by Magga Ram (PW-5) and Pura  

Ram. On receipt of this information he and Naina Ram (PW-

2) went to the place and found that baby Kamala had been  

raped and killed by crushing her head with a stone. The dead  

body of Kamala was, according to the report, lying on the  

spot.   

3. A  case  under  Sections  302  and  376  of  the  IPC  was  

registered  on  the  basis  of  the  above  information  and  

investigation started which led to the arrest of the appellant  

and  eventually  a  charge  sheet  against  him  before  the  

jurisdictional  magistrate  who  committed  the  case  to  

Additional Sessions Judge, (Fast Track), Bali.

4. Before the Sessions Court,  the appellant  pleaded not  

guilty  and  claimed  a  trial.  At  the  trial  the  prosecution  

produced  19  witnesses  apart  from  placing  reliance  upon  

several documents. No evidence in defence was, however,  

led by the appellant. By its judgment and order dated 27th  

January, 2004 the trial Court eventually held the appellant  

guilty  and  accordingly  convicted  and  sentenced  him  as  

indicated  above.  Aggrieved  by  the  judgment  and  order  

passed by the trial Court, the appellant preferred Criminal  

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Appeal No.604 of 2004 which was, upon reappraisal of the  

evidence adduced before the trial  Court,  dismissed by the  

High  Court  affirming  the  conviction  recorded  against  the  

appellant  and  the  sentence  awarded  to  him for  both  the  

offences.

5. We  have  heard  learned  counsel  for  the  parties  at  

considerable length.  Prosecution case is  based entirely  on  

circumstantial evidence as no ocular account of the incident  

has  been  presented  to  the  Court.  Both  the  Courts  below  

have, however, found the circumstantial evidence adduced  

by the prosecution to be sufficient to record a finding of guilt  

against  the  appellant  for  the  offences  with  which  he  was  

charged. We may briefly refer to the circumstance as also  

the evidence supporting the same.

6. The first  and foremost  is  the  deposition  of  Ota  Ram  

(PW-4) which clearly establishes that the appellant was also  

one of  those who had participated in  the “Jaagran” along  

with other villagers. To the same effect is the statement of  

Maga Ram (PW-5) who too had testified that the appellant  

was present in the “Jaagran”. He had seen Kamala at around  

10.00 in the night. The deposition of both these witnesses  

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proves  that  apart  from the  appellant  and  several  others,  

baby Kamala the deceased was also present at the “Jaagran”  

with other children and had gone off to sleep after taking  

dinner. That version is supported even by Naina (PW-1), who  

states that the appellant was also present in the “Jaagran”  

around mid night when the tea was served to those present  

including  the  appellant.  The  witness  has  further  deposed  

that his son and daughter Kamala were sleeping around the  

place but Kamala was found missing in the morning. There  

is,  in  our  opinion,  no  reason  to  disbelieve  the  version  of  

these witnesses when they say that the “Jaagran” was held  

by  the  complainant  in  which  Kamala  his  daughter  was  

present and gone off  to  sleep nor  is  there any reason to  

disbelieve the story that even the appellant was present at  

the “Jaagran” and had tea with other witnesses around mid  

night.  

7. That Kamala died a homicidal death was not seriously  

disputed either  before the Courts  below or  before us and  

rightly  so  because  the  statement  of  doctor  Omprakash  

Kuldeep  (PW-18)  who  conducted   the  post-mortem  and  

authored the report marked as Ex. P-34 has clearly opined  

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that Kamala died a homicidal death on account of injury on  

her head. In the deposition, the doctor certified injuries even  

on her private parts.  The post-mortem report  certifies  the  

following injuries on the person of the deceased:

“1. Face crushed.

2. Upper lip wad cut.  Bleeding was from right ear, dried seminal  stains on right and left thigh.  

3. Nose bone was depressed and fractured.

4. Fracture was on left orbital margin.

5. Fracture was in left temporal bone.

6. Fracture was in maxilla bone of left side.

7. Fracture in parietal bone and occipital bone of right side which  was upto the base of skull.

8. Incise teeth of lower and upper (jaw) were broken.

9. Achaimoisis was present in Genital organs labia.

10.  Crushing wound was on forechet and perineum.

11. Hymn was congested.”

 8. Rajendra Singh (PW-9), who investigated the case and  

who is a witness to the scene of occurrence, seized blood  

stained clothes of the deceased including two hair recovered  

from the private parts of the deceased. He is also witness to  

the seizure of blood stained clothes of the appellant on the  

basis  of  a  disclosure  statement  made  by  him.  Equally  

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important is the circumstance that the FSL report found the  

trouser  and  the  shirt  of  the  appellant  to  be  stained  with  

human blood belonging to group 'A' which happened to be  

the blood group of the deceased also. The stone used for  

crushing  the  head of  the  deceased was  also  found to  be  

smeared with human blood of group 'A'.

9. What supports the prosecution case in a great measure  

is  also  the  fact  that  the  appellant  had  suffered  multiple  

injuries on his private parts. The medical examination report  

dated 13th April, 1998 marked as Ex. P-38 has noticed the  

following injuries on the person of the appellant:

“(i) Abrasion 1x0.5 cm. Size Dorsal Aspect of (Rt) Elbow joint.

(ii) Abrasion 3x2 cm. Size Medical Aspect of (Lt) Elbow joint.

(iii) Multiple Abrasion Varying in Size Dorsal Aspect of (Lt) Elbow joint.

(iv) Abrasion 7.5x1 cm. Size Ant. aspect of (Rt.) leg Just below (Rt.) knee joint

(v) Abrasion 1.5x1 cm. Ant. aspect of (Lt.)  knee joint

(vi) Abrasion 1x0.5 cm. Medial side of Ant. Aspect (Lt.) knee joint

(vii) Abrasion 1x1 cm. Lt. side of Ant. Aspect of (Lt.) knee joint

(viii) Abrasion 1x0.5 cm. Dorsal Aspect of Retracted Prepuce.

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(ix) Abrasion 2x0.25 cm. Lat. Aspect of (Rt.) side of Retracted prepuce.

(x) Abrasion 0.25x0.25 cm. Dorsal Aspect of glans penis  

(xi) Abrasion 2x0.25 cm. Lat. Aspect of (Rt.0 Thigh

(xii) Abrasion 2x0.25 cm. (Rt.) gluteal Region

(xiii) Abrasion 2x1 cm. (Lt.) Palm

Duration of all injuries i.e. S.No. i to xiii is 3-5 days. “    

 10. No explanation was, however, offered by the appellant  

for  the injuries  sustained by him one of  which was found  

even at his penis. To summarise, the prosecution has clearly  

established:

(1) That a “Jaagran” was arranged by the complainant  

on the offside of village near the well in which nearly 50  

people  participated  including  Kamala  the  deceased  

child.

(2) The deceased-Kamala had gone out to sleep after  

dinner around mid night.

(3) The  appellant  was  also  participating  in  the  

“Jaagran” and was seen sitting along with some of the  

prosecution witnesses.

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(4) Kamala-deceased  was  found  missing  in  the  

morning but upon search her dead body was noticed at  

some distance in the village in a naked condition with  

injuries on her private parts and her head smashed with  

a stone lying nearby.

(5) The  appellant  made  a  disclosure  statement  

leading to the recovery of his blood stained clothes.

(6) The blood was found to be of human origin and  

belonging to group 'A" which also was the blood group  

of the deceased-Kamala.

(7) The appellant on medical examination was found  

to have several injuries on his body including injury on  

his penis.

(8) The injuries found on the person of the appellant  

were said to be 3 to 5 days old.

(9) The appellant did not offer any explanation for the  

injuries on his body.

11. The  above  circumstances,  in  our  opinion,  form  a  

complete chain and lead to an irresistible conclusion that the  

appellant was responsible for the offence of rape and murder  9

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of  the  hapless  baby-Kamala  who  appears  to  have  been  

picked up from the place where she was sleeping with other  

children  and  taken  at  a  distance  only  to  be  raped  and  

eventually killed. The trial Court, in the light of the evidence  

on record and careful  analysis  undertaken by it,  correctly  

came  to  the  conclusion  that  the  appellant  was  guilty  of  

murder of the deceased. There is no reason whatsoever for  

us to interfere with that finding.  

12. What remains to be addressed now is  an application  

filed by the appellant in this Court seeking to raise a plea  

that  the  appellant  was  a  juvenile  on  the  date  of  the  

commission  of  offence  hence  entitled  to  the  benefit  of  

Juvenile Justice (Care and Protection of Children) Act, 2000.  

Since the appellant did not have any documentary evidence  

like a school or other certificate referred to under the Act  

mentioned  above,  this  Court  had  directed  the  Principal,  

Government Medical College, Jodhpur, to constitute a Board  

of  Doctors  for  medical  examination  including  radiological  

examination of  the appellant  to determine the age of  the  

appellant as in April, 1998 when the offence in question was  

committed.  The  Superintendant  of  the  Central  Jail  was  

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directed  to  ensure  production  of  the  appellant  for  the  

purpose  of  determination  of  his  age  before  the  Medical  

Board  for  carrying  out  the  tests  and  examination.  In  

compliance with the said direction, the Principal constituted  

a Medical Board for determining the age of the appellant and  

submitted  a  report  dated  4th February,  2014.  The  report  

records the following findings and conclusions:

“Age estimation of Darga ram @ Gunga s/o Heera on the  

basis of findings of X Ray of Elbow, Wrist, Pelvis, Sternum, Medial  

end of Clavicle, Skull and left shoulder joint (film no.10252 dated  

04-02-2014, Eight Film and CT  Scan of Skull and Mandible (film  

56013, four films) dated  04-02-2014,  is as below:-

1. All  Epiphysis  around elbow joint,  lower  end of  Radius  &  

Ulna, Ilias Crest & Ischial tuberosity & for medial end of  

Clavicle have appeared 7 fused, it suggests that his age is  

above 22 years.

2. All the body pieces of sternum have fused with each other  

but not fused with Xiphoid process & manubrium sternum,  

it suggests his age is above 25 years but below 40 years.

3. Posterior 1/3 of sagital suture have fused, it suggests his  

age is above 30 years & below 40 years.

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4. Ventral  7  Dorsal  margins  of  pubic  symphysis  are  

completely defined 7 there are no granular appearance on  

it, it suggests his age is below 36 years.

Opinion:-           

Concluding all the above radiological findings, dental & Clinical  

appearance,  the age of  Darga  Ram @ Gunga S/o  Heera  is  in  

between 30 years to 36 years and the average age of Darga Ram  

@  Gunga  S/o  Heera  is  about  33  years  on  the  date  of  

examination.

Enclosure:- X Ray (8 plates) & CT Scan 4 Plates) as above.

Sd/- Sd/- Sd/-

(Dr. L. Raichandani) (Dr. A.L.Chauhan)         (Dr. P.C. Vyas)

Professor, Anatomy PHOD, Radiodiagnosis       PHOD, forensic Medicine  

Dr. S.N. Medical College Dr. S.N. Medical College    Dr. S.N. Medical College

   Jodhpur       Jodhpur     Jodhpur”

13. It  is  evident from the opinion tendered by the Board  

that the appellant's age has been placed in the range of 30  

to 36 years.  The Board appears to have taken the average  

of two extremitees and concluded that the appellant's age  

on the date of the examination was about 33 years. It was  

on the basis of this estimate that Mr. Panjwani contended  

that  the  appellant  should  have  been  around  14  years,  2  

months and 7 days old if his age was 30 years on the date of  12

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medical  examination.  He  should  have  been  17  years,  2  

months and 7 days old on the date of the occurrence if his  

age is taken as 33 years and 20 years, 2 months and 7 days  

if his age is taken as 36 years on the date of the medical  

examination.  It was argued that even if one were to accept  

the  average  of  the  two  estimates  in  the  range  of  30-36  

years, mentioned by the Medical Board, he was a juvenile on  

the date of the occurrence being only 17 years, 2 months  

hence entitled to the benefit of the provisions of the Juvenile  

Justice (Care and Protection of Children) Act, 2000.

14. The appellant is reported to be a deaf and dumb.  He  

was never admitted to any school.  There is, therefore, no  

officially  maintained  record  regarding  his  date  of  birth.  

Determination of his age  on the date of the commission of  

the offence is, therefore, possible only by reference to the  

medical opinion obtained from the duly constituted Medical  

Board in terms of Rule 12(3) (b) of the Juvenile Justice (Care  

and Protection of Children) Rules, 2007.  Rule 12(3)(b) reads  

as under:

“12. Procedure to be followed in determination  of Age.―  

(1) xxxxxxxxxxxxxxx

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(2) xxxxxxxxxxxxxxx  

(3)  

(b) and only in the absence of either (i), (ii) or (iii) of   clause (a) above, the medical opinion will be sought   from a  duly  constituted Medical  Board,  which  will   declare  the  age  of  the  juvenile  or  child.  In  case   exact assessment of the age cannot be done, the   Court  or  the  Board  or,  as  the  case  may  be,  the   Committee, for the reasons to be recorded by them,   may,  if  considered  necessary,  give  benefit  to  the   child or juvenile by considering his/her age on lower   side within the margin of one year.

and, while passing orders in such case shall,  after   taking into consideration such evidence as may be  available, or the medical opinion, as the case may  be, record a finding in respect of his age and either   of the evidence specified in any of the clauses (a)(i),   (ii), (iii) or in the absence whereof, clause (b) shall   be the conclusive proof of the age as regards such   child or the juvenile in conflict with law”

15. The  medical  opinion  given  by  the  duly  constituted  

Board comprising Professors of Anatomy, Radiodiagnosis and  

Forensic Medicine has determined his age to be “about” 33  

years on the date of the examination.  The Board has not  

been able to give the exact age of the appellant on medical  

examination  no matter  advances made in  that  field.  That  

being so in terms of Rule 12 (3) (b) the appellant may even  

be entitled  to  benefit  of  fixing  his  age on  the  lower  side  

within a margin of one year in case the Court considers it  

necessary  to do so in  the facts  and circumstances of  the  

case. The need for any such statutory concession may not  

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however  arise  because  even  if  the  estimated  age  as  

determined by the Medical Board is taken as the correct/true  

age  of  the  appellant  he  was  just  about  17  years  and  2  

months old on the date of the occurrence and thus a juvenile  

within the meaning of  that  expression as used in  the Act  

aforementioned. Having said that we cannot help observing  

that  we  have  not  felt  very  comfortable  with  the  Medical  

Board estimating the age of the appellant in a range of 30 to  

36 years as on the date of the medical examination.  The  

general  rule  about  age  determination  is  that  the  age  as  

determined can vary plus minus two years but the Board has  

in the case at hand spread over a period of six years and  

taken a mean to fix the age of the appellant at 33 years.  We  

are not sure whether that is the correct way of estimating  

the  age  of  the  appellant.  What  reassures  us  about  the  

estimate of age is the fact that the same is determined by a  

Medical  Board  comprising  Professors  of  Anatomy,  

Radiodiagnosis  and Forensic  Medicine whose opinion must  

get the respect it deserves. That apart even if the age of the  

appellant was determined by the upper extremity limit i.e.  

36 years the same would have been subject to variation of  

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plus minus 2 years meaning thereby that he could as well be  

34 years on the date of the examination.   Taking his age as  

34 years on the date of the examination he would have been  

18 years, 2 months and 7 days on the date of the occurrence  

but such an estimate would be only an estimate and the  

appellant may be entitled to additional benefit of one year in  

terms of lowering his age by one year in terms of Rule 12 (3)

(b) (supra) which would then bring him to be 17 years and 2  

months old, therefore, a juvenile.   

16. In the totality of the circumstances, we have persuaded  

ourselves to go by the age estimate given by the Medical  

Board and to declare the appellant to be a juvenile as on the  

date of the occurrence no matter the offence committed by  

him is heinous and but for the protection available to him  

under the Act the appellant may have deserved the severest  

punishment  permissible  under  law.  The  fact  that  the  

appellant has been in jail for nearly 14 years is the only cold  

comfort for us to let out of jail one who has been found guilty  

of rape and murder of an innocent young child.

17. In the result, this appeal succeeds but only in part and  

to the extent that while the conviction of the appellant for  

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offences under Section 302 and 376 of IPC is affirmed the  

sentence  awarded  to  him  shall  stand  set  aside  with  a  

direction  that  the  appellant  shall  be  set  free  from prison  

unless required in connection with any other case.  

              ....…………………………….…J         (T.S. THAKUR)

 ....…………………………….…J New Delhi,          (R. BANUMATHI) January 8, 2015

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