Bombay High Court: A Division Bench of Pradeep Nandrajog, CJ and Bharati Dangre, J. disposed of clubbed appeals arising out of the same criminal matter, and convicted the accused of the offence of rape punishable under Section 376 IPC.
The accused was alleged to have taken away and raped the prosecutrix, who was a minor at the time of the commission of offence. He was convicted by the trial court for offences under Sections 363, 366-A and 376 IPC. On appeal to Sessions Court, his conviction under Section 376 was reversed, however, remaining part of the trial court order was confirmed. The State and the accused, both, filed appeals before the High Court.
On facts of the case, the High Court held that the offence under Sections 363 and 366-A IPC were not proved against the accused. However, since the prosecutrix was 14 years of age at the time of commission of offence, her consent to the sexual act does not matter. His acquittal by Sessions Court for the offence punishable under Section 376 IPC was thus reversed.
Next, the Court considered that at the time of commission of offence, the accused was about 16 years of age — a juvenile. On the aspect of sentencing, it was observed:
”At the time when the accused and the prosecutrix were in love and did the act which, to the misfortune of the accused, attracted the penal laws, his age was 16 years and 2 months. The Juvenile Justice (Care and Protection of Children) Act, 2010 followed by the Act of 2015 had not come into force. Under the two Acts, the age of juvenility was enhanced from 16 years to 18 years. In the decision reported as Hari Ram v. State of Rajasthan, (2009) 13 SCC 211, even in pending matters before the trial court or in the appeal the benefit of said acts has to be accorded to the accused and thus deciding the three appeals today, it would be our duty to extend the benefit of Juvenile Justice Act, 2010 and 2015 to the accused. As per clause (g) of sub-Section (1) of Section 18 of the Juvenile Justice Act, the accused can, at best, be directed to be sent to Special Home for such period not exceeding three years so that the Accused can be reformed. It would be futile, therefore, to pass an order as contemplated by law for the reasons for the year 2019, the age of the accused is 38 years.”
Accordingly, the accused was convicted as aforesaid but no sentence was imposed on him since as of today, the accused was no longer a Juvenile. The appeals were disposed of accordingly.[State of Maharashtra v. Hemant Ashokkumar Mittal, 2019 SCC OnLine Bom 1670, decided on 22-08-2019]