BHARAT BHUSHANversusSTATE OF HIMACHAL PRADESH

                    [2013] 5 S.C.R. 1013


                   BHARAT BHUSHAN                               A
                           v.
            STATE OF HIMACHAL PRADESH
         (Criminal Appeal Nos. 628-629 of 2013)
                      APRIL 26, 2013
                                                                B
         [T.S. THAKUR AND DIPAK MISRA, JJ.]

      Penal Code, 1860 -s.376 - Rape of about 11 years old
girl - Acquittal by trial court - Conviction by High Court relying
on the evidence of witnesses and medical evidence - C
Awarded sentence of 5 years and fine with default clause -
Held: Conviction by High Court is justified - But since the
accused was a juvenile under Juvenile Justice Act, 2000,
High Court was not right in awarding sentence - High Court
should have referred the case to Juvenile Justice Board for D
sentence - However, in view of the facts that on the date of
the present judgment, the accused was 36 years old, having
family and has already undergone 3 years sentence, it would
not be appropriate to refer the case to Juvenile Justice Board
- Therefore, direction issued to release the accused from E
custody - Juvenile Justice (Care and Protection of Children)
Act, 2000 - ss.2(k), 2(1), 7-A, 20 and 49 - Juvenile Justice
(Care 8nd Protection of Children) Rules, 2007 - rr.12 and 98.

     Juvenile Justice (Care and Protection of Children) Act, F
2000 - s. 20 - Applicability - Scope of - Held: As regards
proceedings pending against a juvenile on the date the Act
came into force, Court can record a finding regarding
culpability of the accused, but cannot pass order on sentence ·
- For passing the sentence, the case should be referred to
the Juvenile Board.                                             G

   Appellant-accused alongwith another co-accused
was prosecuted for having committed offence of rape
upon a girl of about 11 years. Trial court acquitted both
                             1013                               H


                                              f,
    1014    SUPREME COURT REPORTS             [2013] 5 S.C.R.


A the accused. In appeal, High Court after appreciation of
  the evidence acquitted the co-accused. But found the
  appellant-accused guilty of the offence punishable u/
  s.376 IPC. While passing sentence, the High Court
  rejected the plea of the accused that he was entitled to
B benefit of provisions of s.20 of Juvenile Justice (Care and
  Protection of Children) Act, 2000, as he was below 18
  years on the date of incident, and sentenced him to
  imprisonment of five years and fine of Rs.50,000/- with
  default clause. Hence the present appeals by the
c appellant-accused against the conviction order as well as
  order of sentence.

        Dismissing the appeal challenging the conviction
    order and allowing that challenging the order of sentence,
    the Court
D
        HELD: 1. On the date, the offence was committed, the
    appellant was admittedly a juvenile having regard to the
    provisions of Sections 2(k), 2(1), 7-A, 20 and 49 Juvenile
    Justice (Care and Protection of Children) Act, 2000 read
E with Rules 12 and 98 of the Rules framed under the Act.
  · He was, therefore, entitled to the benefit of the said
    provision. [Para 10] [1022-C-E]

       Hari Ram vs. State of Rajasthan (2009) 13 SCC 211:
F 2009 (7) SCR 623; Raju and Anr. vs. State of Haryana (2010)
  3 SCC 235: 2010 (2) SCR 574; Dharambir vs. State (NCT
  of Delhi) and Anr. (2010) 5 sec 344: 2010 (5) SCR 137;
  Mohan Mali and Anr. vs. State of M.P. (2010) 6 SCC 669;
  Jitendra Singh @ Babboo Singh and Anr. vs. State of U.P.
  (2010) 13 SCC 523: 2010 (13) SCR 879; Daya Nand vs.
G State of Haryana (2011) 2 SCC 224: 2011 (1) SCR 173;
  Shah Nawaz vs. State of U.P. and Anr. (2011) 13 SCC 751:
  2011 (9) SCR 859; Amit Singh vs. State of Maharashtra and
  Anr. (2011) 13 sec 744: 2011 (9) SCR 890 - relied on.

H       Pratap Singh vs. State of Jharkhand and Anr. (2005) 3



                   '1
          BHARAT BHUSHAN v. STATE OF HIMACHAL              1015
                       PRADESH

•     SCC 551: 2005 (1) SCR 1019; Jameel vs. State of              A
    , Maharashtra (2007) 11 SCC 420: 2007 (1) SCR 946; Ranjit
      Singh vs. State of Haryana (2008) 9 SCC 453: 2008 (13) SCR

-
•
     332 - referred to.
           2.1. As per s.20 of the 2000 Act, the proceedings
     pending against a juvenile in any Court as on the date
                                                                   8
     the 2000 Act came into force, had to continue as if the
     2000 Act had not been enacted. Section 20 obliges the
     Court concerned to record a finding whether the juvenile
     has committed any offence. If the Court finds the juvenile
     guilty, it is required under the above provision to forward   C
     the juvenile to the Juvenile Board which would then pass
     an order in accordance with the provisions of the Act as
     if it had been satisfied on enquiry under the Act that the
     juvenile had committed an offence. [Para 12) [1023-E-F]
                                                                   D
          2.2. In the present case, the appellant was not a
     juvenile under the 1986 Act as he had crossed the age
     of 16 years on the date of occurrence. However, the case
     was pending before the High Court in appeal on the date
     the 2000 Act came into force and had, therefore, to be E
     dealt with under Section 20 of the 2000 Act, which
      required the High Court to record a finding about the guilt
     of the accused but stop short of passing an order of
     sentence against him. Inasmuch as the High Court
     convicted the appellant, it did not commit any mistake, for F
     the power to do so was clearly available to the High Court
      under the provisions of Section 20. But it was not
     permissible to pass a sentence for which purpose the
     High Court was required to forward the juvenile to the
     Juvenile Board constituted under the Act. The order of G
     sentence is, therefore, unsustainable. [Para 17) [1026-H;
     1027-A-C]
         Bijender Singh vs. State of Haryana and Anr. (2005) 3
     SCC 685:_2005 (2) SCR 1131; Dharambir vs. State (NCT of
     Delhi) (2010) 5 SCC 344: 2010 (5) SCR 137; Daya Nand vs.      H
    1016   SUPREME COURT REPORTS                [2013] 5 S.C.R.

A State of Haryana (2011) 2 SCC 224: 2011 (1) SCR 173; Kalu
  @Amit vs. State of Haryana (2012) 8 SCC 34 - relied on.

       3.1. The conviction recorded by the High Court was
  justified on merits. It would not be appropriate to refer the
  appellant to the Juvenile Justice Board at this stage. The
8
  High Court properly appreciated the evidence on record
  especially the deposition of the prosecutrix, her
  companion PW-2 and her aunt PW-3 as also her parents.
  The High Court also correctly appreciated the medical
C evidence available on record. The prosecutrix was
  between 9 to 12 years according to the deposition of
  doctor (PW-9) and deposition of PW-13 who proved her
  date of birth to be 13th April, 1982. The presence of human
  blood on the cap with which the appellant appears to have
  wiped the blood after tfte sexual assault, is also an.
D lncrimioating circumstance which the High Court has
  rightly taken into consideration while finding the appellant
  guilty. [Para 18 and 19) [1027-D-F; 1028-A-B]
       3.2. Reference of the appellant to the Juvenile Justice
E Board is unnecessary at this distant point. of time. The
  appellant is nearly 36 years old by now and a father of
  three children. He has already undergone nearly three
  years of imprisonment awarded to him by the High Court.
  In the circumstances, reference to the Juvenile Justice
F Board at this stage of his life would serve no purpose.
  The only option available is to direct his release from
  custody. [Para 20) [1028-C-D]
                       Case Law Reference:

G      2005 (1) SCR 1019          referred to          Para 6
                                  relied on            Para 13
       2007 (1) SCR 946           referred to          Para 7
       2008 (13) SCR 332          referred to          Para 7
H
    BHARAT BHUSHAN v. STATE OF HIMACHAL                 1017
                 PRADESH

    2009 (7) SCR 623            relied on            Para 8     A

    2010 (2) SCR 57 4           relied on            Para 9
    2010 (5) SCR 137            relied on            Para 9
    (2010) 6 sec 669            relied on            Para 9     B
    2010 (13) SCR 879           relied on            Para 9

    2011 (1) SCR 173            relied on            Para 9
    2011 (9) SCR 859            relied on            Para 9
                                                                c
    2011 (9) SCR 890            relied on            Para 9
    2005 (2) SCR 1131           relied on            Para 14
    2010 (5) SCR 137        c
                                relied on            Para 15
    2011 (1) SCR 173            relied on            Para 16    D

    (2012) 8 sec 34             relied on            Para 16

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 628-629 of 2013.
                                                                E
    From the Judgment & order dated 08.04.2010 and
30.04.2010 of the High Court of H.P. at Shimla in Criminal
Appeal No. 406 of 1995.

    Shovan Mishra, Milind Kumar for the Appellant.              F
    Suryanaryana Singh, AAG, Pragati Neekhra for the
Respondents.

    The Judgment of the Court was delivered by
                                                                G
    T.S. THAKUR, J. 1. Delay condoned.

    2. Leave granted.

     3. These appeals arise out of judgments and orders dated
8th April, 2010 and 30th April, 2010 passed by the High Court   H
    1018     SUPREME COURT REPORTS                [2013] 5 S.C.R.


A of Himachal Pradesh at Shimla whereby Criminal Appeal
  No.406of1995 has been allowed, the order of acquittal passed
  by the trial Court set aside, the appellant convicted for an
  offence punishable under Section 376 of the Indian Penal Code
  and· sentenced to undergo rigorous imprisonment for a period
B of five years besides a fine of Rs.50,000/-. In default of payment
  of fine, the appellant has been directed to undergo further
  imprisonment for a period of one year.

          4. The appellant was charged with commission of an
    offence of rape upon a girl hardly 11 years old while she was
C   working in the fields along with another girl aged around 1O
    years in Village Kanda, District Shimla, Himachal Pradesh. At
    the trial, the prosecution examined not only the prosecutrix who
    supported the charge but also other witnesses including PW-
    2-her companion whose name is withheld to protect her identity
D   and who had escaped an attempted assault by the co-accused,
    Dinesh Kumar. An alarm raised by PW-2 appears to have
    attracted the attention of PW-3-Piar Devi, mother of PW-2, who
    had rushed to the spot to rescue the girls, whereupon both the
    accused appears to have fled away. PW-5-Misru-the father of
E   the prosecutrix and PWs-7, 8 and 9 namely Dr. Ajay Negi, Dr.
    Suresh Bansal and Dr. D.C. Negi were also examined at the
    trial all of whom have supported the prosecution case in their
    respective depositions. The trial Court, however, came to the
    conclusion that the prosecution had failed to prove its case
F   against the appellant, the deposition of the witnesses
    mentioned above notwithstanding and, acc,ordingly, acquitted
    both the accused persons of the charges framed against them.

        5. Criminal Appeal No.406 of 1995 was then filed by the
  State of Himachal Pradesh against the order of acquittal to
G assail the view taken by the trial Court qua the appellant as also
  his companion Dinesh Kumar. The High Court has by its
  judgment and order dated 8th April, 2010 allowed the appeal
  in part, reversed the view taken by the trial Court and convicted
H the appellant for rape, punishable under Section 376 of the
    BHARAT BHUSHAN v. STATE OF HIMACHAL                      1019
          PRADESH [T.S. THAKUR, J.]
Indian Penal Code. As regards Dinesh Kumar, the High Court            A
was of the view that the order of acquittal passed in his favour
was justified. The High Court was of the view that the
prosecution story was reliable and inspired confidence not only
because of the inherent worth of the deposition of the
prosecutrix but also because of the fact that her story was fully     B
corroborated by PW-2, the other girl who escaped from the
clutches of Dinesh Kumar, the co-accused and that of PW-3
Piar Devi who had rushed to the place of occurrence to rescue
the victim after hearing an alarm raised by her daughter. More
importantly, the High Court found that the deposition of Dr.          C
Suresh Bansal who had examined the prosecutrix establish the
commission of rape upon the victim. The appellant was on such
 re-appraisal of evidence convicted under Section 376 of the
 Indian Penal Code.
     6. The High Court next examined -the question of sentence        D
to be awarded to the appellant and by separate order dated
30th April, 2010 sentenced the appellant to rigorous
imprisonment for five years and a fine of Rs.50,000/- and a
default sentence of one year as already noticed above. What
is important is that while doing so the High Court noticed and        E
rejected the contention urged on behalf of the appellant that he
was only 16 years and 4 months old at the time offence was
 committed, hence, entitled to the benefit of provisions of Section
20 of the Juvenile Justice (Care and Protection of Children)
Act, 2000. Relying upon the decision of a Constitution Bench          F
of this Court in Pratap Singh v. State of Jharkhand and Anr.
(2005) 3 SCC 551, the High Court held that the benefit of the
Act was not legally available to the petitioner.

    7. The High Court also relied upon the decisions of this
Court in Jameel v. State of Maharashtra (2007) 11 SCC 420,            G
where this Court held that since the appellant in that case had
completed 16 years of age as on the date of the occurrence,
the Juvenile Justice (Care and Protection of Children) Act,
2000, Act had no application. Reliance was also placed. by the
                                                                      H
    1020       SUPREME COURT REPORTS               [2013] 5 S.C.R.


A
           -
   High Court upon the decision of this Court in Ranjit Singh v.
   State of Haryana (2008) 9 SCC 453 where this Court had
   relying upon the Judgment in Jamee/'s case (supra) rejected
   the contention that the petitioner was entitled to the benefit of
   Juvenile Justice (Care and Protection of Children) Act, 2000,
8 since he was below 18 years as on the date of the commission
   of the offence. In conclusion, the High Court held that Section
   20 of the 2000 Act was inapplicable since the accused was
   over 16 years of age at the time of commission of the offence
   i.e. 22nd June, 1993 and over 18 years of age on 01-04-2001,
   the date when the 2000 Act came into force. The present
C appeal filed by the appellant assails the correctness of the
 ~ above two orders as already noticed earlier.

         8. We have heard learned Counsel for the parties at some
    length. The legal position regarding the entitlement of the
D   appellant who was more than 16 years but less than 18 years
    of age as on the date of commission of the offence on 22nd
    June, 1993, is in our view settled by the decision of this Court
    in Hari Ram v. State of Rajasthan (2009) 13 SCC 211. This
    Court_has in that case traced the history of the legislation and
E   reviewed the entire case law on the subject. Relying upon the
    decision of the Constitution Bench of this Court in Pratap
    Singh's case (supra), this Court in Hari Ram's case (supra)
    reiterated that the question of juvenility of a person in conflict
    with law has to be determined by reference to the date of the
F   incident and not the date on which cognizance is taken by the
    Magistrate. Having said that, this Court held that the effect of
    the pronouncement in Pratap Singh's case (supra) on the
    second question, viz. whether the 2000 Act was applicable in
    a case where the proceedings were initiated under the 1986
G   Act and were pending when the 2000 Act came into force,
    stood neutralised by the amendments to Juvenile Justice (Care
    and Protection of Children) Act, 2000, by Act 33 of 2006. The
    amendments made the provisions of the Act applicable even
    to juveniles who had not completed the age of 18 years on the
H   date of the commission of offence said this Court. Speaking
    BHARAT BHUSHAN v. STATE OF HIMACHAL                 1021
          PRADESH [T.S. THAKUR, J.]

for the Court Altamas Kabir, J. (as His Lordship then was)-      A
observed:

    "58. Of the two main questions decided in Pratap Singh
    case, one point is now well established that the juvenility
    of a person in conflict with law has to be reckoned from 8
    the date of the incident and not from the date on which
    cognizance was taken by the Magistrate. The effect of the
    other part of the decision was, however, neutralised by
    virtue of the amendments to the Juvenile Justice Act,
    2000, by Act 33 of 2006, whereunder the provisions of
    the Act were also made applicable to juveniles who had C
    not completed eighteen years of age on the date of
    commission ofthe offence.

     59. The law as now crystallised on a conjoint reading of
     Sections 2(k), 2(1), 7-A, 20 and 49 read with Rules 12 and D
     98, places beyond all doubt that all persons who were
    below the age of 18 years on the date of commission of
     the offence even prior to 1-4.-2001, would be treated as
    juveniles, even if the claim of juvenility was raised after
     they had attained the age of 18 years on or before the E
     date of commencement of the Act and were undergoing
     sentence upon being convicted.

    xxxxxxxxx
    xxxxxxxxx                                                    F

    68. Accordingly, a juvenile who had not completed
    eighteen years on the date of commission of the offence
    was also entitled to the benefits of the Juvenile Justice
    Act, 2000, as if the provisions of Section 2(k) had always   G
    been in existence even during the operation of the 1986
    Act."

    9. These decisions have been followed in several other
subsequent pronouncements of this Court including the
                                                                 H
    1022     SUPREME COURT REPORTS                 [2013] 5 S.C.R.


A decisions of this Court in Raju and Anr. v. State of Haryana
  (2010) 3 SCC 235, Dharambir v. State (NCT of Delhi) and
  Anr. (2010) 5 SCC 344, Mohan Mali and Anr. v. State of M.P.
  (2010) 6 SCC 669, Jitendra Singh@ Babboo Singh and Anr.
  v. State of U.P. (2010) 13 SCC 523, Daya Nand v. State of
B Haryana (2011) 2 SCC 224, Shah Nawaz v. State of U. P. and
  Anr. (2011) 13 SCC 751 and Amit Singh v. State of
  Maharashtra and Anr. (2011) 13 SCC 744.

        10. The attention of the High Court was, it is obvious, not
C drawn to the decision in Hari Ram's case (supra), although the
  same was pronounced on 5th May, 2009 i.e. almost a year
  earlier to the pronouncement of the impugned judgment in this
  case. Be that as it may, as on the date the offence was
  committed the appellant was admittedly a juvenile having regard
  to the provisions of Sections 2(k), 2(1), 7-A, 20 and 49 read with
D Rules 12 and 98 of the Rules framed under the Juvenile Justice
  (Care and Protection of Children) Act, 2000. He was, therefore,
  entitled to the benefit of the said provision, which benefit, it is
  evident, has been wrongly denied by the High Court only
  because the High Court remained oblivious of the
E pronouncement of this Court in Hari Ram's case (supra).

          11. The question then is whether the High Court could have
    at all recorded a conviction against the appellant who as seen
    above was a juvenile on the date of the commission of the
F · offence. The answer to that question, in our opinion, lies in
    Section 20 of the 2000 Act which reads as under:

        "20. Special provision in respect of pending cases.-
         Notwithstanding anything contained in this Act, all
        proceedings in respect of a juvenile pending in any court
G       in any area on the date on which this Act comes into
        force in that area, shall be continued in that court as if
        this Act had 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
H       respect of the juvenile, forward the juvenile to the Board
    BHARAT BHUSHAN v. STATE OF HIMACHAL                       1023
          PRADESH [T.S. THAKUR, J.]

    which shall pass orders in respect of that juvenile in             A
    accordance with the provisions of this Act as if it had been
    satisfied on inquiry under this Act that a juvenile has
    committed the offence.

    Provided that the Board may, for any adequate and
    special reason to be mentioned in the order, review the            B
     case and pass appropriate order in the interest of such
    juvenile.

    Explanation.- In all pending cases including trial, revision,
    appeal or any other criminal proceedings in respect of a C
    juvenile in conflict with law, in any court, the determination
     of juvenility of such a juvenile shall be in terms of Clause
     (1) of Section~. even if the juvenile ceases to be so on
     or before the date of commencement of this Act and the
    provisions of this Act shall apply as if the said provisions       o
     had been in force, for all purposes and at all material
     times when the alleged offence was committed."

     12. The above makes it manifest that proceedings pending
against a juvenile in any Court as on the date the 2000 Act
came into force had to continue as if the 2000 Act had not been        E
enacted. More importantly Section 20 (supra) obliges the Court
concerned to record a finding whether the juvenile has
committed any offence. If the Court finds the juvenile guilty, it is
required under the above provision to forward the juvenile to
the Board which would then pass an order in accordance with            F
the provisions oHhe Act as if it had been satisfied on enquiry
under the Act that the juvenile had committed an offence.

     13. Even in Pratap Singh's case (supra), this Court had
interpreted Section 20 of the 2000 Act, and held that Section          G   _
20 was attracted to cases where the person, if male, had
ceased to be a juvenile under the 1986 Act being more than
16 years of age but had not yet crossed the age of 18 years.
This Court declared that it was only in such cases that Section
20 was attracted and the Court required to record its conclusion       H
    1024    SUPREME COURT REPORTS                [2013] 5 $.C.R.


A   as to the guilt or innocence of the accused. This Court
    observed:

        "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
B       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 is relatable to
c       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
D       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
E       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
F       Board which shall pass orders in respect of that juvenile."

                                             (emphasis supplied}

       14. Reference may also be made to the decision of this
  Court in Bijender Singh v. State of Haryana and Anr. '(2005)
G 3 SCC 685, where this Court reiterated the legal position while
  interpreting the provisions of the Act and said:

        "8. One of the basic distinctions between the 1986 Act and
        the 2000 Act relates to age of males and females. Under
        the 1986 Act, a juvenile means. a male juvenile who has
H
BHARAT BHUSHAN v. STATE OF HIMACHAL                  1025
      PRADESH [T.S. THAKUR, J.]

not attained the age of 16 years, and a female juvenile      A
who has not attained the age of 18 years. In the 2000 Act,
the ·distinction between male and female juveniles on the
basis of age has not been maintained. The age-limit is
18 years for both males and females.             ·
                                                             B
9. A person above 16 years in terms of the 1986 Act was
not ~juvenile. In that view of the matter the question
whether a person above 16 years becomes "juvenile"
within the purview of the 2000 Act ·must be answered
having regard to the object and purport thereof.
                                                             c
 10. In terms of the 1986 Act, a person who was not
juvenile could be tried in any court. Section 20 of the
 2000 Act takes cf:lre of such a situation stating that
 despite the same the trial shall continue in that court as
 if that Act has not been passed and in the event. he is D
 found to be guiltv of commission of an offence. a finding
 to that effect shall be recorded in the judgment of
 conviction. if any, but instead of passing any sentence
 in relation to the juvenile, he would be forwarded to the
 Juvenile Justice Board (in short the 'BoardJ which shall E
 pass orders in accordance with the provisions of the Act
 as if it has been satisfied on inquiry that a juvenile has
 committed the offence. A legal fiction has, thus, been
 created in the said provision ...

xx xx xx                                                     F

12. Thus, by reason of legal fiction, a person, aJthough
not a juvenile, has to be treated to be one by the Board
for the purpose of sentencing which takes care of a
situation that the person although not a juvenile in terms   G
of the 1986 Act but still would be treated as such under
the 2000 Act for the said limited purpose."

                                     (emphasis supplied)
                                                             H
    1026    SUPREME COURT REPORTS                 [2013] 5 S.C.R.


A      15. Section 20 of the 2000 Act fell for interpretation even
  in Dharambir v. State (NCT of Delhi) (2010) 5 SCC 344, where
  too this Court held that the explanation appended to the same
  enables the Court to determine the juvenility of the accused
  even after conviction and that the Court can while maintaining
B the conviction set aside the sentence imposed upon him and
  to forward the case to the Board for passing an appropriate
  order under the Act. This Court observed:

        "11. It is plain from the language of the Explanation to
        Section 20 that in all pending cases, which would include
c       not only trials but even subsequent proceedings by way
        of revision or appeal, etc., the determination of juvenility
        of a juvenile has to be in terms of Clause (/) of Section
        2, even if the juvenile ceases to be a juvenile on or before
        1st April, 2001, when the Act of 2000 came into force,
D       and the provisions of the Act would apply as if the said
        provision had been in force for ali purposes and for all
        material times when the alleged offence was committed.
        Clause (/) of Section 2 of the Act of 2000 provides that
        "juvenile in conflict with law" means a "juvenile" who is
E       alleged to have committed an offence and has not
        completed eighteenth year of age as on the date of
        commission of such offence. Section 20 a/so enables the
        Court to consider and determine the juvenility of a person
        even after conviction by the regular Court and also
F       empowers the Cowt, while maintaining the conviction, to
        set aside the sentence imposed and forward the case to
        the Juvenile Justice Board concerned for passing
        sentence in accordance with the provisions of the Act of
        2000."
G
         16. The above position was restated in Daya Nand v.
    State of Haryana (2011) 2 SCC 224 and Kalu @ Amit v. State
    of Haryana (2012) 8 SCC 34.

      17. In the present case, the appellant was not a juvenile
H under the 1986 Act as he had crossed the aQe of 16 years.
    BHARAT BHUSHAN v. STATE OF HIMACHAL                     1027
          PRADESH [T.S. THAKUR, J.]

This case was, however, pending before the High Court in             A
appeal on the date the 2000 Act came into force and had,
therefore, to be dealt with under Section 20 of the Act which
required the High Court to record a finding about the guilt of
the accused but stop short of passing an order of sentence
against him. Inasmuch as the High Court convicted the                B
appellant, it did not commit any mistake for the power to do so
was clearly available to the High Court under the provisions of
Section 20. What was not permissible was passing of a
sentence for whic.h purpose the High Court was required to
forward the juvenile to the Juvenile Board constituted under the     c
Act. The order of sentence is, therefore, unsustainable and shall
have to be set aside.
      18. The next question then is whether the conviction
recorded by the High Court was justified on merits and, if it was,
whether we ought to refer the appellant to the Juvenile Justice      D
Board at this stage. Our answer is in the affirmative qua the
first part and negative qua the second. The High Court has, in
our opinion, properly appreciated the evidence on record
especially the deposition of the prosecutrix, her companion PW-
2 and her aunt Piar Devi-PW-3 as also her parents. The High          E
Court has also correctly appreciated the medical evidence
available on record especially the deposition and the report of
PW-8;.;Dr. Suresh Bansal, the relevant portion of whose report
reads as under:
                                                                F
     "... On examination I found that the female child had not
     started menstruating. There was painful separation of
     thighs. No marks of violence were present. Clotted blood
     was present on labia majora and on thighs. Secondary
     sexual characters were developed. Breasts were
     developed according to age. Pubic and axillary hairs G·
     were present but were scanty. Hymen was freshly
     fractured. Posterior fourchette was tom. The chid admitted
     one little finger with pain. The vagina was congested.....
     Injury mentioned in MLC Ext. PW-8/C appeared on the
     prosecutrix was subject to sexual intercourse ... "        H
-
        1028     SUPREME COURT REPORTS                (2013] 5 S.C.R.


    A      19. The prosecutrix was between 9 to 12 years according
      to the deposition of PW-9-Dr. D.C. Negi and deposition of PW-
      13 who proved her date of birth to be 13th April, 1982. The
      presence of human blood on the cap with which the appellant
      appears to have wiped the blood after the sexual assault is also
    B an incriminating circumstance which the High Court has rightly
      taken into consideration while finding the appellant guilty. We,
      therefore, see no reason to interfere with the order of conviction
      as recorded by High Court on merits.

           20. Coming then to the question of .reference to the
    C Juvenile Justice Board, we are of the view that such a reference
      is unnecessary at this distant point of time. The appellant is
      nearly 36 years old by now and a father of three children. He
      has already undergone nearly three years of imprisonment
      awarded to him by the High Court. In the circumstances,
    D reference to the Juvenile Justice Board at this stage of his life
      would, in our opinion, serve no purpose. The only option
      available is to direct his release from custody.

           21. In the result, we dismiss criminal appeal arising out of
    E SLP (Crl.) No.5059 of 2012 directed against the order of the
      High Court dated 8th April, 2010 and uphold the conviction of

-     the appellant for the offence under Section 376 IPC. Criminal
      appeal arising out of SLP {Crl.) No.5060 of 2012 is, however,
      allowed and the order dated 30th April, 2010 passed by the
    F High Court is set aside with a direction that the appellant shall
      be released from custody unless he is required in connection
      with any other case.

        K.K.T.                                   Appeals disposed of.




I