Holding

The Supreme Court upheld the conviction, ruling that the victim's identification obviated the need for a test identification parade and that the Juvenile Justice (Care and Protection of Children) Act, 2000 was not applicable.

Summary

The appellant, a mechanic, lured a five‑year‑old girl, took her away and allegedly committed sexual assault, including intercourse through the rectum. The girl identified the accused the next day and a medical report corroborated the assault. The trial court convicted him under IPC sections 363, 376, 511 and 377, and the High Court affirmed the conviction. On appeal, the appellant argued that a test identification parade was required and that the Juvenile Justice (Care and Protection of Children) Act, 2000 should apply because he was under eighteen at the time of the offence. The Supreme Court held that a test parade was unnecessary as the victim had already identified the accused and that the 2000 Act was inapplicable since the offence occurred before its commencement and the appellant was over eighteen when the Act came into force. Consequently, the conviction was upheld and the appeal dismissed.

Issues considered

Whether the absence of a test identification parade violates the accused's right to a fair trial when the victim did not know the accused.
Whether the Juvenile Justice (Care and Protection of Children) Act, 2000 applies to a case where the accused was sixteen at the time of the offence and over eighteen when the Act became operative.
Whether the evidence of victim identification and medical report suffices to sustain conviction under IPC sections 363, 376, 511 and 377.

Legislation cited

Indian Penal Code, 1860s. 363, s. 376, s. 377, s. 511
Juvenile Justice Act, 1986
Juvenile Justice (Care and Protection of Children) Act, 2000

Subjects

rapeminoridentification paradeJuvenile Justice ActIPCconvictionsexual assaultchild protection

Judgment

\
A JAMEEL
v.
STATE OF MAHARASHTRA

JANUARY 16,2007

B [S.B. SINHA AND MARKANDEY KA TJU, JJ.]

Penal Code, 1860; ss. 363, 377 and 511:

Rape of a minor girl-Accused allegedly enticed a minor girl, later
raped her-Trial Court found him guilty of offences under ss. 363, 376
c rlw ss. 511 and 377 !PC and sentenced him accordingly-Appeal dismissed
by High Court-On appeal, Held: Prosecutrix was absolutely a minor
innocent girl-She having identified the accused, it would be futile to hold
a test identification parade-On the basis of deposition of prosecutrix and
her parents, Trial Court as also High Court rightly convicted the accused
D persons.

Juvenile Justice (Care and Protection of Children) Act, 2000-
Applicability of-Held: Not applicable since accused having attained
eighteen years of age on 1.4.2001, the date on which 2000 Act came into
force.
E
Accused-appellant allegedly enticed the prosecutrix, a 5 years old
girl, and taken her away and raped her. She returned and narrated the
incident to her parents. On the next day the girl was taken to the garag~
where accused was working as mechanic, where she identified the accused.
F An FIR was lodged and the prosecutrix was examined medically. Trial
Court found the accused guilty of committing the offences u/ss. 363, 376
r/w Section 511 and Section 377 IPC and sentenced him accordingly and
also imposed fine. Accused preferred an appeal, which was dismissed by
the High Court. Hence the present appeal.

G Appellant contended that he 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; that
although his age on the date of the occurrence was more than sixteen years
but below eighteen years, having regard to the provision of the Juvenile
H Justice (Care and Protection of Children) Act, 2000, it was imperative on
946
JAMEEL v. STATE 947

the part of the court to follow the procedures laid down therein. A
Dismissing the appeal, the Court

HELD: 1.1. 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 B
the prosecutrix on the next day of the incident also stands proved. Having
regard to the depositions of the prosecutrix and her parents, the Trial
Court as also the High Court cannot be held to have committed any error
in arriving at the finding convicting the accused for committing offences
u/ss. 363, 376 r/w ss. 377 and 511 IPC. [Paras 10 and 11] [950-C-D]
c
1.2. The deposition of the prosecutrix clearly shows that she was
absolutely an innocent girl. [Para 12] [950-H]

1.3. Having regard to the fact that the appellant was known to the
prosecutrix and her family members and she having identified him before D
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. Hence, the prosecution has not proved its case.
[Para 12J [951-A-BJ

Amitsingh Bhikamsing Thakur v. State of Maharashtra, [2007) l E
SCALE 62, relied on.

2.1. 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 F
girl who had attained the age of eighteen years". [Para 13) (951-C]

Pratap Singh v. State of Jharkhand and Another, (2005] 3 SCC 551,
followed.

2.2. Appellant was above eighteen years of age on 01.04.2001. The
G
2000 Act, therefore, cannot have any application whatsoever in the instant
case. [Para 15) [952-E)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 173 of
2006. H
\.
948 SUPREME COURT REPORTS (2007] l S.C.R.
~

'.(
A From the Judgment and Final Order dated 27. l.2005 of the High Court
of Judicature of Bombay, Bench at Aurangabad in Crl. A. No. 23/1991.

Sanjeev Kumar Choudhary, Sanjay Visen and P.V. Yogeswaran for the
Appellant.

B Su.shil Karanjkar, Gautam Godara and Ravindra K. Adsure for the
Respondent.

The Judgment of the Court was delivered by

SINHA, J. : This appeal is directed against a judgment and order
c datedS.B.
27.01.2005 passed by a learned Single Judge of the Aurangabad Bench
of the Bombay High Court in Crimif!al Appeal No. 23of1991 whereby and
whereunder the appeal preferred by the appellant herein against a judgment
of conviction and sentence dated 16.0 l.1991 was dismissed.
i
D 2. Appellant herein is a resident of Ambedkamagar, 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, Ambedkamagar, .;-,
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
E be traced. She came back to her house weeping and crying. It has been
noticed by the High Court :

" ... When 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
F 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
G acts, but he was not traced ... "

3. 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
H
JAMEEL v. STATE [SINHA, J.] 949
. ) was lodged. The prosecutrix was medically examined by one Dr. Sheela A
Kadam. The medical report reads as under :

"(i) Hymen intact

(ii) No evidence of injury over valva
B
(iii) External anal spinctor abrasion anteriorly and laterally about
Y,. cm x Y,. cm. Redness of spinctor PR powerful.

(iv) For vaginal examination not possible.

(v) No semen deposit and hymen intact. So wet smear for spearm C
taken from rectum. Negative.

There is evidence of intercourse through rectum."

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 D
-· one under Sections 363, 376 read with Section 511 and Section 377 thereof.

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

7. 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. G
8. 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. H
t'
950 SUPREME COURT REPORTS (2007] I S.C.R.

A 9. It was furthermore submitted that although the age of the appellant
on the date of the occurrence was rrtore 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.
B
10. 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
C 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.

11. 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
D 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
E in tliis behalf has been categorically denied by Dr. Sheela Kadam.
So, the medical evidence, in fact, supports the version ofprosecutrix.
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
F 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
G 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... "

H 12. The deposition of the prosecutrix, in our opinion, clearly shows that
I
f-

JAMEEL v. STATE [SINHA, J.] 951

she was absolutely an innocent girl. So far as the submission of the learned A
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.l.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 B
Thakur v. State of Maharashtra - 2007 (1) SCALE 62]. We, therefore, cannot
accept the contention that the prosecution has not proved its case.

13. 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
c
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".
D
... 14. 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 E
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 F
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 G
criminal courts only if the boy had crossed l 6 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 H
952 SUPREME COURT REPORTS [2007] I S.C.R.

A 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.

B
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 1.4.200 I 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
c years of age.

(b) The 2000 Act would be applicable in a pending proceeding in
any court/authority initiated under the 1986 Act and is pending
D
when the 2000 Act came into force and the person had not
completed 18 years of age as on 1.4.2001."

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

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

S.K.S. Appeal dismissed.