Decided on July 11,2013

Jolly @ Jarnail Singh Appellant


- (1.) This appeal is directed against the judgment and order dated 20-5-2003, passed by Additional Sessions Judge/F.T.C. Pauri Garhwal in Sessions Trial No. 10/2002, convicting the accused/appellant U/S 376 (1)(g) I.P.C. and sentencing him to undergo R.I. for ten years and a fine of Rs. 2,000/- and in default of payment of fine to further undergo six months R.I.
(2.) At the out set it is to be mentioned here that the charge was framed against the accused for gang rape and the Section 376 (1)(g) has wrongly been mentioned whereas for gang rape the relevant section is 376 (2)(g) I.P.C. In the judgment also Section 376(1)(g) I.P.C. has been mentioned.
(3.) During the course of argument, the learned Amicus Curiae appearing on behalf of accused/appellant has contended that at the time of occurrence the accused/appellant Jarnail Singh was below 18 years of age and was juvenile, therefore, his conviction and sentence passed by the learned Additional Sessions Judge cannot be sustained in the eyes of law. He drew attention of the court towards statement of accused recorded U/S 313 Cr.P.C. wherein the age of accused is noted as 16 years. But the learned Sessions Judge, without conducting inquiry to know whether the accused was juvenile at the time of occurrence or not, on the physique of accused held that the accused was major and was aged above 18 years. Learned Amicus Curiae has contended that it was incumbent upon the learned Sessions Judge to have conducted the inquiry under Section 7-A of Juvenile Justice (Care and Protection of Children) Act, 2000 ( in short 'the Act') whether the accused was juvenile or not. This plea can be raised at any stage, in appeal also. Therefore, in the interest of justice, the matter may be referred to conduct enquiry as to whether at the time of occurrence the appellant was a juvenile or not. In support of his contention he has relied on the case of Dharambir versus State (NCT of Delhi) and another, 2010 5 SCC 344 and the case Hari Ram vs. State of Rajasthan and another, 2009 13 SCC 211.;

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