GAUHATI HIGH COURT
Before :- R.B. Misra and B.P. Katakey, JJ.
Crl. Ref. No. 1 of 2003
For the Respondent :- C. Lalramzauva, Amicus Curiae.
A. Indian Penal Code, Section
B. Evidence Act, Section
C. Indian Penal Code, Section
D. Juvenile Justice (Care and Protection of Children) Act, 2000, Section
Cases referred :Bhupinder Sharma v. State of Himachal Pradesh, 2003(4) RCR(Crl.) 960 (SC) : 2003(8) SCC 551
State of H.P. v. Shree Kant Shekari, 2004(8) SCC 153 : (2004 Cri LJ 4232).
B.P. Katakey J. - This reference is made under Rule 9 of the Rules for the Regulation of the Procedure of Officers Appointed to Administer Justice in the Lushai Hills 1937, for confirmation of judgment of conviction passed by the learned Additional District Magistrate (Judicial), Aizawl District, Aizawl in Case No. Crl. Tr. 1604/2001 (Serchhip P.S. Case 61/2001) under Section 376(f) of the Indian Penal Code, against the respondent herein and sentencing him to undergo rigorous imprisonment for a period of 10 years with fine of Rs. 2000/- in default to undergo rigorous imprisonment for a further period of six months.
2. We have heard Mrs. Helen Dawngliani, learned public prosecutor, Mizoram and Mr. C. Lalramzauva, learned Amicus Curiae for the respondent, appointed by the Court.
3. The prosecution story in brief is that on 19-8-2001 a written first information report was lodged in Serchhip police station by Rualkhuma, P.W.1, father of the victim, of Serchhip Chanmari Veng intimating that on the previous night at about 8.30 p.m. his daughter, who was six years old was raped by the accused Rualhleithanga inside his residential house. On receipt of the said first information Serchhip P.S. Case No. 61/2001 was registered under Section 376(f) IPC read with Section 14 of the Foreigners Act and taken up the matter for investigation. During the course of investigations the statements of the witnesses were recorded and the victim as well as the accused person were medically examined. Upon completion of the investigation and having found a prima facie case, the police submitted charge-sheet.
4. The learned trial Magistrate on 4-4-2002 framed the charge against the accused-respondent under Section 376(f) IPC and also under Section 14 of the Foreigners Act and on being explained the accused pleaded not guilty and claimed for trial. During trial the prosecution in order to bring home the charge against the accused-respondent examined five witnesses including father and the mother of the victim, the nurse who was on duty at Serchhip hospital, one witness to the seizure memo and the investigating officer who conducted the investigation in the said police case. The victim was examined as Court witness, who was a minor and aged about 8 (eight) years at time of recording her statement. The learned trial Judge put the questions to which she has given the answers and it appears from the questions and answers that the victim has understood the questions and she was capable to answer the questions. The learned Magistrate thereafter recorded the statement of the accused under Section 313 Cr.P.C. and on the basis of the evidence on record, both oral and documentary, convicted the accused person under Section 376(f) of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 2000/- in default to undergo rigorous imprisonment for a further period of 6 (six) months.
5. The learned P.P. Mizoram. Mrs. Helen Dawngliani has submitted that the prosecution has been able to prove beyond all reasonable doubt that the victim was subjected to sexual harassment as she was raped and it was accused- respondent who has committed such heinous crime to a six years old baby and hence the judgment of conviction passed by the learned trial Magistrate is required to be confirmed. The further submission of the learned P.P. is that though the victim's statement is not required to be corroborated for the purpose of maintaining conviction under Section 376, the medical evidence has corroborated the version of the victim as well as by the evidence of the parents of the victim and, therefore, the accused-respondent should be dealt with severely and no leniency should be shown to the perpetrator of such a crime.
6. Mr. C. Lalramzauva, learned Amicus Curiae, has submitted that as no injury was found on the male organ of generation of the accused-respondent when he was medically examined, it cannot be said that the accused-respondent has committed the offence as the absence of such injuries do not support the prosecution case that the accused-respondent has committed the offence and, therefore, the accused is entitled to be acquitted and hence the judgment passed by the learned Magistrate cannot be confirmed in the absence of clinching evidence against him. The further submission of the learned Amicus Curiae is that since the accused at time of commission of offence was little over 16 years of age he could only be tried under the provision of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the same having not been done the judgment of conviction is bad in law and liable to be set aside.
7. We have considered the submission put forwarded by the learned counsel for the parties and also perused the judgment of conviction passed by the learned Magistrate and the evidences on record, both oral and documentary.
8. The factual matrix leading to this reference gives an account of sordid and obnoxious incident wherein the respondent, who was staying with the victim's family, satisfied his animated passion and sexual pleasure by sexually assaulting a baby girl, who was six years old, in utter disregard of human dignity and value. This a very sad story in which a girl of six years old was subjected to sexual harassment by committing rape by the accused.
9. The victim girl whose statement was recorded by the learned Magistrate, during the course of trial has explained what has happened to her on that fateful night and how she was subjected to the sexual intercourse by the accused. In her statement she has further stated that the accused had committed rape and she did not dare to cry, though it was very painful, as he threatened her to kill. Because of such inhuman action on the part of accused-respondent there was profuse bleeding from the private parts of the victim.
10. P.W.1 Rualkhuma, the father of the victim in his deposition has stated that the accused stayed with them on the night of 18-8-2001 and he (accused) was lying on the bed with his minor daughter, that he with his friend went out at about 7.30 p.m. and when he returned, his wife and children had already gone to sleep and his daughter came back to their bed and he told her to go back where she slept before but she said that she was afraid and in the morning his wife told him that their daughter had serious injury on her private part and he also checked and found that the private part was torn and still bleeding. After his daughter informed him about the incident, the accused was nowhere to be seen but some people informed him that they saw the accused in Chanmari Veng at Serchhip and he also searched for the accused but before he could reach him the police personnel caught him at Serchhip Bazar and took him to the police station. He also stated that he submitted the FIR and took his daughter to the hospital where they stitched her vagina. During cross-examination he denied the suggestion that the injury to the private parts of the victim was caused by the finger of the accused and also denied that the injury was caused to his daughter by one Mawitea who slept with the victim.
11. P.W.2 Sangpuii, the mother of the victim girl in her deposition has stated her daughter, who was born on 30th January, 1994 used to sleep with her uncle Mawitea, but on that night her uncle was not there as he had gone out and the accused came to their house to sleep on that night. The accused used to sleep in their neighbour's house but because their house was congested and there was no place for him to sleep, the accused was staying with them on that night. On that night her daughter was lying with the accused but in the middle of the night she came back to their bed and slept with them. In the morning when she made the bed she found that there was some bloodstain on the bed sheet, where her daughter slept. Then she asked her daughter whether she had any injury and her daughter initially told her that she had no injury but when insisted she said that she wanted to take bath first. She washed her daughter and while she was taking bath she found her to be quiet and then she checked her private part and found that it was torn and still bleeding. Then she asked her the reason and she replied that the accused had sexual intercourse with her that night and after she asked her daughter why she did not tell them on that night, she said that she was threatened by the accused that if she told anybody about it, including her parents he would kill her. Before they got up, the accused had already gone out and was nowhere to be seen. Then she informed her husband and went to the hospital and as advised by the doctor they went to the Police Station and informed the incident. Then her daughter was examined by the doctor and stitched her private part and asked them to stay overnight in the hospital. Her husband was looking for the accused. In her cross- examination she denied the suggestion put by the accused that she falsely implicated him in the case as she was indebted to accused to the tune of Rs. 7,000/- apart from that the accused-respondent could not bring anything to malign the witnesses or disbelieve her and also could not bring out any contradiction. The next witness who was examined by the prosecution was a nurse posted at Serchhip hospital at the relevant point of time, where the victim was medically examined. This witness has proved the medical examination report as well as the signature of the doctor who conducted such medical examination. There was absolutely no cross-examination on the material part i.e. to the positive statement made by this witness that the victim was medically examined by the doctor and submitted the report. There was no cross-examination on the point of finding recorded in the medical report. Mr. Lalchhanhima, who was the witness to the seizure memo was also examined by the prosecution, who has stated in his deposition about the seizure of the bed sheet with blood stain. The investigating officer was also examined as witness.
12. The medical examination report submitted by the doctor upon medical examination of the victim as well as the accused were exhibited as Exhibit- P.4. It appears from the medical examination report of the victim that the doctor upon genital examination has found as follows :-
- (a) Pubic Hair : Nil
- (b) Seminal stain : Nil
- (c) Bruising/Laceration of external genitalia : Laceration of posterior pouchette including perimum.
- (c) Hymen : Complete tear on posterior aspect.
13. On completion of the recording of the prosecution witnesses, the accused was examined by the learned Magistrate under Section 313 Cr.P.C. who during his examination has admitted that he had sex with the victim and also admitted that though he had sex with victim he did not penetrate his male organ of generation in full as she got up. From the narration of the evidence on record more particularly evidence of victim as well as the statement of the accused recorded under Section 313 Cr.P.C. it is proved beyond all reasonable doubt that the accused has raped the victim and there was penetration of the male organ of the generation in the vagina of the victim. The medical evidence supported the version of the victim, though such corroboration is not required for the purpose of convicting the perpetrator of such a crime and such conviction can be maintained on the sole testimony of the victim girl. There is absolutely no reason as to why the statement of the victim girl should not be believed. The girl of 8 (eight) years old who is capable to answer the questions properly, why should depose before the Court falsely narrating the incident involving herself. The Apex Court in a catena of decisions has held that the version of the victim is to be accepted, if it is found to be trustworthy and conviction can be maintained on the basis of such statement of the victim.
14. The submission of the learned Amicus Curiae that as no injury was found in the male organ of generation of the accused, he should be acquitted from the charge leveled against him, also cannot be accepted in view of the fact that it is not necessary that there should always be marks of injuries on the penis. Moreover, the accused in his statement under Section 313 Cr.P.C. has admitted that the penetration was there. Section 375 of the Indian Penal Code defines a rape. Explanation to Section 375 clarifies that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Therefore, the slightest penetration of the male organ of generation is sufficient to constitute the rape. Hence, the submission of the learned Amicus Curiae that because no injury was found in the male organ of generation, the respondent cannot be convicted for offence under Section 376(f), cannot be accepted, hence rejected.
15. The Apex Court in Bhupinder Sharma v. State of Himachal Pradesh, 2003(4) RCR(Crl.) 960 (SC) : 2003(8) SCC 551 : (2004 Cri LJ 1) has held as under :-
- "10. The offence of rape occurs in Chapter XVI IPC. It is on offence affecting the human body. In that Chapter, there is a separate heading for "sexual offences" which encompasses Sections 375, 376, 376-A, 376-B, 376-C and 376-D. "Rape" is defined in Section 375. Sections 375 and 376 have been substantially changed by the Criminal Law (Amendment) Act, 1983, and several new sections were introduced by the new Act i.e. Sections 376A, 376B, 376C and 376D. The fact that sweeping changes were introduced reflects the legislative intent to curb with an iron hand the offence of rape which affects the dignity of a woman. The offence of rape in its simplest term is "the ravishment of a woman, without her consent, by force, fear or fraud", or as "the carnal knowledge of a woman by force against her will". "Rape" or "raptus" is when a man hath carnal knowledge of a woman by force and against her will (Co. Litt. 123-B); or as expressed more fully, "rape is the carnal knowledge of any woman, above the age of particular years against her will, or of a woman child, under that age, with or against her will." (Hale PC 628). The essential words in an indictment for rape are rapuit and carnaliter cognovit but carnaliter cognovit, not any other circumlocution without the word repuit, are not sufficient in a legal sense to express rape; (1. Hon. 6, 1a, 9Edw. 4, 26a (Hale PC 628)). In the crime of rape, 'carnal knowledge' means the penetration to the slightest degree of the organ alleged to have been carnally known by the male organ of generation (Stephen's Criminal Law, (9th Edn., p. 262). In Encyclopedia of Crime and Justice (Vol. 4, p. 1356) it is stated ".......... even slight penetration is sufficient and emission is unnecessary". In Halsbury's Statutes of England and Wales (4th Edn.), Vol. 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation with violence of the private person of a woman - an outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order."
17. In State of H.P. v. Shree Kant Shekari (2004 Cri LJ 4232) (supra), the Apex Court has observed as under :-
- "3. Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity - it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves scar on the most cherished possession of woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman it is a crime against the entire society. It destroys, as noted by this Court in Bodhisattwa Gautam v. Subhra Chakraborty, the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the fundamental rights, namely the right to life contained in Article 21 of the Constitution. The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized Judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos."
19. The next point which requires consideration of this Court is whether accused-respondent is entitled to the benefit of the Juvenile Justice (Care and Protection of children) Act, 2000, which came into force on 1-4-2001 upon having been notified in the Gazette of India pursuant to the provision contained in sub-section (3) of Section 1 on the said Act. According to the learned Amicus Curiae it is evident from the records of the criminal proceedings against the respondents that the accused was below 18 years of age and, therefore, he is entitled to the protection under the said Act of 2000 in view of the definition of Juvenile in Section 2(k) of the Act (hereinafter referred to as Act of 2000).
20. We have perused the records of Criminal Tr. Case No. 1604/2001, trial of which was conducted in the Court of a learned Additional District Magistrate (Judicial) Aizawl District, Aizawl. It appears from the first information report under Section 154 of the Criminal Procedure Code that the Officer in charge of Serchhip Police station has recorded that the age of the accused is 16 years. In the statement recorded by the investigating officer under Section 161 Cr.P.C. also the age of the accused was recorded as 16 years. The medical examination report, in respect of the accused, which was exhibited as Exhibit P-4, also indicates the age of the accused as 16 years.
21. In the arrest memo dated 19/8/2001 filed by the investigating officer, though the age of the accused was initially recorded as 16 but same was overwritten as 18. In the charge-sheet filed by the police upon completion of the investigation, the age of the accused was shown as 18. From the aforesaid documents it is evident that the age of the accused was around 16 years at the time of commission of the offence. Though in the charge-sheet which was filed on 8-10-2001, his age was shown as 18, the said age recorded by the police cannot be accepted in view of the age recorded in the first information report, medical examination report as well as statement of the accused recorded by the investigating officer under Section 161 Cr.P.C.
22. Act of 2000 was enacted to consolidate and amend the law relating to Juveniles in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs and by adopting a child friendly approach in adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through various institutions established under the said Act. The said Act was promulgated in view of the provisions contained in the Constitution of India including Clause (3) of Article 15, Clauses (e), (f) of Article 39, Articles 45 and 47 which imposed on the State a primary responsibility of ensuring that all the needs of children are met and that the basic human rights are fully protected. The said Act was enacted bearing in mind the standards prescribed in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990).
23. Section 2(k) defines "Juvenile" or "Child", which means a person who has not completed eighteen years of age. Section 2(p) defines "Offence" which means an offence punishable under any law for the time being in force. Chapter II deals with the Constitution of Juvenile Justice Board, procedure, etc. in relation to the board, powers of Juvenile Justice Board etc. Section 14 provides for inquiry by the board regarding Juvenile when such person is produced before the board having been charged with the offence. Section 15 provides that where a board is satisfied on an inquiry that a Juvenile has committed an offence, than, notwithstanding anything to the contrary contained in any other law for the time being in force, the board may, if it thinks so fit pass the following orders :-
- "(a) allow the Juvenile to go home after advice or admonition following appropriate inquiry against and counselling to the parent or the guardian and the Juvenile;
- (b) direct the Juvenile to participate in group counselling and similar activities;
- (c) order the juvenile to perform community service;
- (d) order the parent of the Juvenile or the Juvenile himself to pay a fine if he is over fourteen years of age and earns money;
- (e) direct the Juvenile to be released on probation of good conduct and placed under care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behavior and well being of the Juvenile any period not exceeding three years;
- (f) direct the Juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well being of the Juvenile for any period not exceeding three years;
- (g) make an order directing the Juvenile to be sent to a special home -
- (i) in the case of Juvenile, over seventeen years but less than eighteen years of age for a period of not less than two years;
- (j) in case of any other Juvenile for the period until he ceases to be a Juvenile" :
25. From the proceeding of Criminal Tr. No. 1604-2001 it appears that the accused was around 16 years of age at the time of commission of the offence. Therefore, he is entitled to the protection under the Act of 2000 and he is required to be tried by the Board constituted under the said Act. The Government of Mizoram in exercise of power conferred by Section 68 of the Act of 2000 has framed Mizoram Juvenile Justice (Care and Protection of Children) Rules, 2003, which was published in the Mizoram Gazette on 1-8-2003, making provision, amongst others, for constitution of Juvenile Justice Board. Prior to framing of the said rules and prior to the enactment of Act of 2000 the Government of Mizoram vide notification dated 15-10-1999 had constituted the Juvenile Court under the provision of Juvenile Justice Act 1986.
26. In view of the finding recorded by this Court that the accused was about 16 years of age at the time of commission of the offence, he is required to be tried under the provision of Act of 2000 and as he has not been tried under the said provision of law, the conviction recorded by the learned Additional District Magistrate (Judicial) cannot be sustained. Since the accused has crossed the age of 18 now, he is no longer a juvenile within the meaning of Section 2(k) of the Act of 2000 and, therefore, cannot be directed to be lodged in a special home and also no order as stipulated in the Section 15 of the said Act can be passed at this stage and, therefore, while maintaining the order of conviction passed by the learned Court below, we have no alternative but to quash the award of sentences and directing that the accused be released, forthwith if he is not wanted in any other case. Accordingly while confirming the judgment of conviction of the accused under Section 376(2)(f) of Indian Penal Code, we quash the award of sentence passed by the learned trial Court and direct to set the accused at liberty forthwith, if he is not wanted in any other case. It appears from the records that the accused is a foreign national and, therefore, the authority is directed to take appropriate action in this regard as required under the law.
27. Before parting we would like to observe that provision contained in Section 21 of the Act of 2000 makes publication of report, disclosing the name, address or school or any other particulars calculated to lead to the identification of the juvenile or any picture of such juvenile, in any Newspaper, Magazine News sheet or Visual media of any inquiry regarding a juvenile in conflict with law under this Act, punishable, provided the authority holding such an inquiry, for the reasons to be recorded in writing, permits such disclosure, if in its opinion such disclosure is in the interest of the juvenile.
28. Since publication of the identity of such juvenile has been made punishable, unless the authority holding such inquiry permits, as required under Section 21 of the said Act and though there is no restriction put by the said provision on any Court to reflect the name of such juvenile in the judgment passed by the Courts, keeping in view the object of the framing of the Act of 2000 and also the provisions contained in Section 21 of the Act, and also keeping in view the social object, we are of the view that it would be appropriate, if the identity of such juvenile is not disclosed in the judgment unless an order is passed by the authority holding such inquiry permitting such disclosure for the reasons to be recorded and in whose opinion, such disclosure is necessary in the interest of the juvenile.
29. The Registry is directed to send a copy of this judgment to the Registrar General of Gauhati High Court in Principal seat for the purpose of circulating the same to all the Courts below and also to circulated copy of this order to all the Courts in the State of Mizoram.
30. The reference is accordingly answered.