THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.1787 of 2007 Date:28.10.2014 Between:
Harijana Kiran Kumar Alias Kiran . Petitioner.
AND The Sate of A.P., rep by the Public Prosecutor, High Court of A.P., Hyderabad.
. Respondent.
The Court made the following :
THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.1787 of 2007 ORDER:
This revision is preferred against judgment dated 14-12-2007 in Crl.A.No.103/2006 on the file of I Additional District & Sessions Judge, Kurnool whereunder judgment dated 30-08-2006 in C.C.No.45/2005 on the file of Principal Magistrate, Juvenile Justice Board, Kurnool was confirmed.
2. Brief facts leading to this revision are as follows:-
Inspector of Police, Kurnool Town Circle filed charge sheet against Juvenile in conflict with law alleging that on 06-06-2005, at about, 3:00 P.M., the Juvenile in conflict with law took the victim girl (P.W.2) into his house in the absence of inmates and committed rape on her and on the report of mother of the victim, police registered Crime No.59/2005 and investigation revealed that the Juvenile in conflict with law took the victim to his house on the pretext of giving a chocolate and there committed rape on her, thereby, he committed offence under Section 376 (f) IPC. On these allegations, on prosecution side P.Ws.1 to 11 are examined and documents Exs.P1 to P11 are marked.
On behalf of the Juvenile in conflict with law, no witness is examined and no document is marked and on a over all consideration of oral and documentary evidence, trial Court found the Juvenile in conflict with law guilty for the offence under Section 376 (f) IPC and punished him under Section 15 (1) (g) of Juvenile Justice (Care and Protection of Children) Act (for short ‘the Act’) and ordered that the Juvenile in conflict with law shall be sent to Special Home for a period of two years. Aggrieved by the same, Juvenile in conflict with law preferred appeal to the Court of Session, Kurnool and I Additional District and Sessions Judge, Kurnool, on a reappraisal of the evidence, confirmed the conviction and punishment imposed against the Juvenile in conflict with law and now aggrieved by the judgments of the Courts below, present revision is preferred.
3. Heard both sides.
4. Advocate for revision petitioner mainly contended that both the Courts failed to see that the ingredients of Section 376 (f) IPC are not at all made out by the prosecution and both the Courts imposed conviction on improper and incorrect appreciation of facts. It is further contended that P.Ws.1 to 3 whose testimony is relied on by Courts below for convicting revision petitioner are highly interested witnesses and their evidence is with full of discrepancies. The other contention of the revision petitioner is that there is a delay of five days in lodging complaint and this aspect was not considered by the Courts below. It is also contended that both the Courts failed to apply the provisions of Probation of Offenders Act, since the revision petitioner is a student and Juvenile. Alternatively, he submitted even if the conviction is confirmed he cannot be sent to Special Home as he is ceased to be a Juvanile, in support of his argument he relied on a judgment of this Court in Bondili Jagannath Singh vs. The Govt. of A.P.
5. On the other hand, learned Public Prosecutor submitted that the revision petitioner committed a very heinous offence on a girl aged about six years and both trial Court and appellate Court have rightly appreciated evidence on record and that there are no grounds to interfere with the concurrent findings.
6. Now the point that would arise for my consideration in this revision is whether judgments of the Courts below are legal, proper and correct?
7. Point:-Brief facts of the prosecution case are that on 06-06-2005, at about 3:00 P.M., revision petitioner induced the victim girl, on the pretext of giving a chocolate, took her to his house and there committed rape on her and on hearing the cries of the victim, her mother rushed to the spot and found the victim girl weeping complaining pain in her vagina and that the revision petitioner was also present there. On the complaint of mother of the victim girl, criminal law was set into motion and after due investigation, a charge sheet was filed against the revision petitioner for the offence under Section 376 (f) IPC.
To prove the charge alleged against the revision petitioner, prosecution examined 11 witnesses besides marking 11 documents.
P.W.1 is the mother of the victim girl, P.W.2 is the victim girl and P.W.3 is father of victim girl. Circumstantial witnesses P.Ws.4 to 8 have not supported the prosecution case and they were treated hostile. P.W.9 is the medical officer who examined the victim, P.W.10 is the medical officer who examined the Juvenile in conflict with law and P.W.11 is the investigating officer.
8. Advocate for revision petitioner mainly contended that P.Ws.1 to 3 are highly interested witnesses and there is no supporting evidence for the testimony of these three witnesses and both trial Court and appellate Court convicted the revision petitioner relying on the evidence of these three witnesses and the findings of the Courts below cannot be accepted, which are based on the testimony of highly interested witnesses. The very same objection is raised before the appellate Court and the learned Appellate Judge discarded the objection on the ground that P.W.2 being a girl of six years old has no comprehension about sexual intercourse, therefore, she could not explain in detail as to the sexual act committed on her, but by taking the circumstantial evidence of P.W.1, which is supported with the findings of the medical officer, the appellate Judge found the revision petitioner guilty. As seen from the evidence of P.W.2, though she has not specifically stated about penetration, which is an ingredient to attract offence of rape, but the facts narrated by her would certainly reveal about commission of the rape and both trial Court and appellate Court have rightly considered the evidence of P.W.2. In fact, the trial Court, while recoding the evidence of P.W.2, put some preliminary questions to satisfy itself as to the understanding capacity of P.W.2 and only after satisfying, the trial Court proceeded with recording the evidence of victim. Though it is contended that the evidence of P.Ws.1 to 3 is with full of discrepancies, as seen from the record, there is not even a single contradiction elicited during the course of cross-examination of P.Ws.1 to 3 on any of the material aspects, therefore, the objection that the evidence of P.Ws.1 to 3 has to be discarded on the ground of interestedness and discrepancies cannot be sustained.
9. The other objection of the Advocate for revision petitioner is that there is a delay of five days in lodging the complaint, this objection was also raised before the appellate Court and the learned Appellate Judge discarded this objection considering the nature of offence and the family reputation of the victim. As seen from the record, both P.Ws.1 & 3 offered explanation for the delay of five days and the same is quite convincing and very reasonable, therefore, the Courts below have rightly discarded the objection with regard to delay. Further, as seen from the facts coupled with the evidence, the delay pointed out is not at all fatal to the prosecution case.
10. Scope of revisional jurisdiction is limited one.
The Courts, while exercising revisional jurisdiction, cannot enter into a detailed discussion on the merits or demerits of the case. Section 397 empowers High Court or any Sessions Court to call for and examine the records of the inferior Court for the purpose of satisfying themselves as to the correctness, legality or proprietary of any findings, sentence or order recorded or passed. The object is to set right patent defect or error. The word ‘illegality’ can only mean an incurable irregularity, incurable because of prejudice leading to failure of justice. In other words, it is nothing but contrary to the principles of law.
11. Here in this case, both trial Court and appellate Court have rightly appreciated evidence of prosecution witnesses and came to a right conclusion and that there are absolutely no incorrect findings in the judgments of the Courts below. On a scrutiny of the material, I feel that both the Courts have not committed any error or illegality in convicting the revision petitioner, therefore, there are no grounds to interfere with the conviction recorded against the revision petitioner.
12. Now coming to sentence part, the trial Court ordered that the Juvenile in conflict with law shall be sent to Special Home for a period of two years for the offence for which he was found guilty.
13. Now the argument of the Advocate for revision petitioner is that both trial Court and appellate Court have not extended the benefits of P.O Act and in that way, they have committed illegality. But as seen from the judgment of the trial Court, learned trial judge has given reasons for not applying P.O Act and the learned Appellate Judge accepted those reasons, therefore, the objection that the judgments of the Courts below have to be treated as illegal for not applying the provisions of P.O Act cannot be accepted. Here, as on the date of offence, the revision petitioner was 17 years old. So taking his age into consideration, the Juvenile Justice Board, Kurnool ordered that he shall be sent to Special Home for a period of two years as per Section 15 (1) (g) of the Act. Advocate for revision petitioner submitted that now the revision petitioner is aged about 27 years and he is a married person and now he cannot not be sent to Special Home. He further submitted that the revision petitioner even cannot be sent to regular jail and therefore, by applying proviso under Section 15 (1) (g) of the Act, he has to be released.
14. In Bhoop Ram vs. State of U.P., Hon’ble Supreme Court in similar circumstances held that the appellant has to be released. In that case, the appellant therein was juvenile as on the date of offence and when the appeal was disposed of, she was 25 years of age and considering the same, the Hon’ble Supreme Court observed that sending her to home for reformation has elapsed and directed that the appellant has to be released.
15. According to Section 15 (1) (g), the Juvenile Justice Board is empowered to send Juvanile in conflict with law to a Special Home for a period of three years, but as per the proviso, the Board can reduce the period of stay to such period as it thinks fit by recording reasons. Here as seen from the material, the revision petitioner was in the home for some time and he is now 27 years old and as he cannot be sent to home, I feel that by applying the proviso to Section 15 (1) (g) of the Act, the period already undergone by him can be treated as punishment and therefore, by reducing the two years period to the period already undergone, this revision can be disposed of.
16. Accordingly, revision is dismissed confirming the conviction, but the punishment of two years imposed by the Juvenile Board is reduced to the period already undergone.
17. As a sequel, miscellaneous petitions, if any, pending in this Criminal Revision Case, shall stand dismissed.
JUSTICE S. RAVI KUMAR
Date:28.10.2014 mrb