http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

CASE NO.: Appeal (crl.)  173 of 2006

PETITIONER: Jameel

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 16/01/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. Sinha, J :

       This appeal is directed against a judgment and order dated 27.01.2005  passed by a learned Single Judge of the Aurangabad Bench of the Bombay High  Court in Criminal Appeal No. 23 of 1991 whereby and whereunder the appeal  preferred by the appellant herein against a judgment of conviction and sentence  dated 16.01.1991 was dismissed.   

       Appellant herein is a resident of Ambedkarnagar, Nanded.  He was a  mechanic of two-wheelers.  One Shivrani Dhondiba Kshirsagar, aged about 6 years  at that time, was also residing at House No. 14, Ambedkarnagar, Nanded. He  allured the said child to ride with him on his Luna.  She was taken towards  Aerodrome.  A search was made for her, but she could not be traced.  She came  back to her house weeping and crying.  It has been noticed by the High Court :

"\005When her mother made query, she told that the  person who used to repair Luna had taken her towards  aerodrome on Luna and thee, after removing her nicker,  he urinated on his private part.  She also told that as a  result of the same, she was having pains at her private  part.  After arrival of the father of the prosecutrix,  Vandana, the mother of the prosecutrix narrated the  incident to him.  The prosecutrix also narrated the said  incident to her father.  Thereafter, father tried to search  the person who had committed the above acts, but he was  not traced\005"

          A First Information Report could not be lodged immediately as night had set  in.   On the next day, the girl was taken to the ’Noor Garage’ where the appellant  was identified as the person who had committed the ’mischievous act’ against her   on the previous day.  The First Information Report thereafter was lodged.  The  prosecutrix was medically examined by one Dr.  Sheela Kadam.  The medical  report reads as under :

"(i)    Hymen intact  (ii)    No evidence of injury over valva (iii)   External anal spinctor abrasion anteriorly and          laterally about < cm x < cm.  Redness of spinctor          PR powerful. (iv)    For vaginal examination not possible. (v)     No semen deposit and hymen intact.  So wet smear          for spearm taken from rectum.  Negative.

       There is evidence of intercourse through rectum."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

       Although a chargesheet was filed against the appellant under Sections 363  and 376 of the Indian Penal Code, but the same was altered to one under Sections  363, 376 read with Section 511 and Section 377 thereof.   

       Before the learned Sessions Judge, not only the prosecutrix but also her  mother Vandana Dhondiba Kshirsagar and father Dhondiba Kishan Kshirsagar  were examined.

       Believing the testimonies of the said witnesses, the learned Sessions Judge  found the charges to have been proved as against the appellant.  He was convicted  under Sections 363, 376 read with Section 511 and Section 377 IPC.  He was  sentenced to suffer rigorous imprisonments for three years, five years and seven  years under Sections 363, 376/511 and 377 IPC respectively and to pay a fine of  Rs.2,000/- under Section 363 and Rs. 3,000/- each under Section 376/511 and 377  IPC respectively.                   The appeal preferred by the appellant herein was dismissed by the High  Court by reason of the impugned judgment.   Hence, the appellant is before us.

       The learned counsel appearing on behalf of the appellant would submit that  the appellant having not been put to test identification parade, which was  imperative having regard to the fact that the prosecutrix did not know him, the  impugned judgment cannot be sustained.   

       It was furthermore submitted that although the age of the appellant on the  date of the occurrence was more than sixteen years but below eighteen years,  having regard to the provision of the Juvenile Justice (Care and Protection of  Children) Act, 2000, (for short, ’the 2000 Act), it was imperative on the part of the  court to follow the procedures laid down therein.                    The fact that the appellant as also the prosecutrix are of the same town is not  in dispute.  It is also not in dispute that the appellant was a mechanic of two- wheelers.  He was working in the ’Noor Garage’.  At about 2.00 p.m. on  16.12.1989, the appellant allured the prosecutrix stating that he would take her on  his Luna for a ride.  She was tempted to go along with him.  The medical report is  also not in dispute.  The identification of the accused by the prosecutrix on the next  day also stands proved.

       Having regard to the depositions of the prosecutrix and her parents, the  learned Sessions Judge as also the High Court cannot be held to have committed  any error in arriving at the finding as noticed hereinbefore.  The High Court, in our  opinion, has rightly opined :

       "Merely because there was no evidence of stains  over perineum or clothes and no semen was detected, it  cannot be concluded that sexual intercourse through  rectum had not taken place.  Suggestion in this behalf has  been categorically denied by Dr. Sheela Kadam.  So, the  medical evidence, in fact, supports the version of  prosecutrix.  Merely because prosecutrix  has stated that  the accused put his penis on her private part and urinated  there and has not specifically stated that he had inserted  his penis in her vagina on her private part, we cannot  jump to the conclusion that there was no attempt on the  part of the accused to commit rape on prosecutrix.  We  must take into consideration the fact that the prosecutrix  is hardly of six years age and whatever act was  committed by the accused, she might have thought that  the accused urinated there, but in fact, the evidence  indicates that he must have tried to commit rape on  Prosecutrix.  However, finding that it is difficult to insert  his penis in her vagina, intercourse through rectum was  committed.  The doctor has stated that there is evidence  of intercourse through rectum\005"

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

       The deposition of the prosecutrix, in our opinion, clearly shows that she was  absolutely an innocent girl.  So far as the submission of the learned counsel in  regard to non-holding of the test identification parade of the appellant is concerned,  we are of the opinion that having regard to the fact that the appellant was known to  the prosecutrix and her family members and she having identified him before  lodging of the F.I.R., it would have been futile to hold a test identification parade.   Even otherwise the substantive evidence is the evidence of identification in court.   [See Amitsingh Bhikamsing Thakur v. State of Maharashtra \026 2007 (1) SCALE  62]. We, therefore, cannot accept the contention that the prosecution has not  proved its case.  

       So far as the submission of the learned counsel in regard to the applicability  of the 2000 Act, is concerned,  it is not in dispute that the appellant on the date of  occurrence had completed sixteen years of age.  The offence having been  committed on 16.12.1989, the 2000 Act has no application.  In terms of the  Juvenile Justice Act, 1986, ’juvenile’ was defined to mean "a boy who had not  attained the age of sixteen years or a girl who had attained the age of eighteen  years".   

       The applicability of the provisions of Section 20 of the 2000 Act was  considered by a Constitution Bench of this Court in Pratap Singh v. State of  Jharkhand and Another [(2005) 3 SCC 551], wherein, inter alia, it was held :         "31. Section 20 of the Act as quoted above deals  with the special provision in respect of pending cases and  begins with non-obstante clause. The sentence  "notwithstanding anything contained in this Act, all  proceedings in respect of a juvenile pending in any court  in any area on date of which this Act came into force"  has great significance. The proceedings in respect of a  juvenile pending in any court referred to in Section 20 of  the Act are relatable to proceedings initiated before the  2000 Act came into force and which are pending when  the 2000 Act came into force. The term "any court"  would include even ordinary criminal courts. If the  person was a "juvenile" under the 1986 Act the  proceedings would not be pending in criminal courts.  They would be pending in criminal courts only if the boy  had crossed 16 years or girl had crossed 18 years. This  shows that Section 20 refers to cases where a person had  ceased to be a juvenile under the 1986 Act but had not  yet crossed the age of 18 years then the pending case  shall continue in that Court as if the 2000 Act has not  been passed and if the Court finds that the juvenile has  committed an offence, it shall record such finding and  instead of passing any sentence in respect of the juvenile,  shall forward the juvenile to the Board which shall pass  orders in respect of that juvenile.         xxx                     xxx                     xxx              34. This Rule also indicates that the intention of  the Legislature was that the provisions of the 2000 Act  were to apply to pending cases provided, on 1.4.2001 i.e.  the date on which the 2000 Act came into force, the  person was a "juvenile" within the meaning of the term  as defined in the 2000 Act i.e. he/she had not crossed 18  years of age.                 xxx             xxx             xxx  (b) The 2000 Act would be applicable in a pending  proceeding in any court/authority initiated under the 1986  Act and is pending when the 2000 Act came into force  and the person had not completed 18 years of age as on  1.4.2001."

       The appellant was above  eighteen years of age  on 01.04.2001.  The  2000, therefore, cannot have any application whatsoever in the instant case.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

       For the reasons aforementioned, there is no merit in this appeal which  is dismissed accordingly.