Bench :

T.S. Thakur and R. Banumathi, JJ.

Issue :

• Whether the appellant was a juvenile on the date of the commission of offence?

• Whether the appellant is entitled to the benefit Juvenile Justice (Care and Protection of Children) Act,, 2000?

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Facts:

• On 9th April, 1998, the complainant had organised a "jaagran" (night long prayer meet) somewhere in the outskirts of the village in Rajasthan.

• There were around fifty persons including men, women and children present in the jagran till midnight. The gathering included a seven year old Kamala (victim) and the over seventeen year old Darga Ram (appellant).

• After the "jaagran" ended, Kamala went to sleep along with other children in a nearby place.

• When the complainant i.e., the father of the victim (Kamala) came to the house, he found his daughter missing. On a search next day in the village and its neighbouring areas, Kamala’s dead body was discovered with signs of premortal rape.

• A case was registered under Sections 302 and 376 of the Indian Penal Code, 1860. Since the appellant, Darga Ram’s name was nowhere mentioned in the FIR lodged by the father of the deceased girl and her relatives and fellow villagers, the police further investigated and arrested Darga Ram, a deaf, dumb and an illiterate adolescent, on the basis of multiple injuries found on his private parts along with blood stains which matched the blood group of the deceased victim (Kamala).

• The fast track Sessions Court and the High Court tried and convicted the appellant for offences under Sections 376 and 302 of the Indian Penal Code (IPC) and awarded 10 years of rigorous imprisonment and fine for the offence of rape punishable under Section 376 of the IPC and similarly, for the offence of murder punishable under Section 302 IPC, the appellant was sentenced to undergo life imprisonment and fine. Both the sentences were directed to run concurrently.

• The Division Bench of the High Court of Judicature for Rajasthan at Jodhpur heard at length the Criminal Appeal filed by him and finally dismissed the appeal. The present appeal before the Supreme Court of India assails the impugned judgment and order.

• IIn the final appeal before the Supreme Court of India, the appellant has raised an additional plea of juvenility on the date of the commission of the offence.

Appellant's Contentions:

• The appellant contended in final appeal that he was a juvenile on the date of the commission of offence and therefore he was entitled to the benefit of Juvenile Justice (Care and Protection of Children) Act, 2000.

• The appellant submitted that he did not have any documentary evidence like a school or other certificate referred to under the Act to determine the age of the appellant as in April, 1998 when the offence was committed.

• The appellant contended that the report submitted by the Medical Board constituted as per the directions of this court for determining the age of the appellant reveal that on the basis of all the 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 is about 33 years on the date of examination. The Board appears to have taken the average of two extremities and concluded that the appellant's age on the date of the examination was about 33 years.

• The appellant 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 and hence entitled to the benefit and protection under the Juvenile Justice (Care and Protection of Children) Act, 2000.

• The appellant submitted that he is reported to be a deaf and dumb and as such he was never admitted to any school. There is, therefore, no officially maintained record regarding his date of birth.

• The medical opinion given by the duly constituted Board has determined his age to be "about" 33 years on the date of the examination and taking this age into account, it is possible to determine his age on the date of the commission of the offence.

Respondent's Contentions:

• The respondent contended that the appellant was one of those who had participated in the "Jaagran" along with other villagers and the deceased Kamala was last seen at around 10.00 in the night.

• The respondent relied on the deposition of one of the witnesses that his son and daughter and Kamala were sleeping around the place but Kamala was found missing in the morning.

• The respondent relied on the statement of doctor Omprakash Kuldeep who conducted the post-mortem and authored the report and has clearly opined that Kamala died a homicidal death on account of head injury and injuries on her private parts.

• The respondent argued that Rajendra Singh 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. The blood stained clothes were examined and found to be of human origin and belonging to group 'A" which also was the blood group of the deceased-Kamala.

• The appellant on medical examination was found to have several injuries on his body including injuries on his private parts which were said to be 3 to 5 days old and the appellant did not offer any explanation for the injuries on his body.

• The respondent contended that the deceased victim was raped before her death and murdered by the appellant.

Judgment:

The Supreme Court held that the appellant was a juvenile at the time of the occurrence of offence no matter the offence committed by him is heinous and as such he is entitled to the benefit of Juvenile Justice (Care and /span>Protection of Children) Act, 2000. The Court held that the conviction of the appellant for offences under Section 302 and 376 of IPC is affirmed and ordered that the sentence awarded to him shall stand set aside as the appellant had already served nearly 14 years jail term. The Court further directed that the appellant shall be set free from prison unless required in connection with any other case.

Relevant Paragraph:

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.

In the result, this appeal succeeds but only in part and to the extent that while the conviction of the appellant for 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.