Umesh Chandra - (1.) THIS appeal is directed against a judgment and order dated 29-7-1985, passed by Additional Sessions Judge, Ghaziabad, convicting and sentencing appellant Mahendra Kumar son of Tirkha, resident of Vijai Nagar, district Ghaziabad, to five years' rigorous imprisonment under Section 376 IPC and to two years' rigorous imprisonment under Section 450 IPC.
(2.) ACCORDING to the prosecution Pusa and his blind son Dharampal were sleeping on the ground floor of their house Km.Sunita, aged about seven years, daughter of Dharampal, was sleeping on the roof of the house when at 11.30 a.m she cried a loud attracting Pusa, Than Singh, Dalchand and others. Appellant Mahendra Kumar is a close neigh hour. As they rushed to the roof of the house, they found that appellant Mahendra Kumar was committing rape on Km. Sunita who was trving to free herself. The appellant was arrested on the spot. Km Sunita was profusely bleeding. With the arrested appellant and Km. Sunita, Pusa rushed to police station Vijai Nagar to lodge a report. Ex Ka 2 is the written report lodged at 12.45 noon. Dr. Km Vishva Gupta examined Km. Sunita who was brought by a constable from police station Vijai Nagar at 12.45 p.m. She found that there was a lacerated wound at the perineum extending from the posterior fourchette to anterior margin of anus. The wound was stitched to control the bleeding. After X-ray, the age of the girl was found to be nine years. The vaginal smear report showed no evidence of sperms and the Doctor could not give a definite opinion about commission of rape. Mahendra Kumar appellant was also examined on 18-5-1984 at 1.45 p.m. and no definite opinion was given about commission of the offence. Alter completing the investigation, a charge-sheet was submitted against the appellant leading to bis trial. The prosecution examined Pusa PW 1, Than Singh PW 2, Dal Chandra PW 3, Hari Chand PW 4, Km. Sunita PW 5 and Satya Prakash PW 6 as witnesses, the testimony of other witnesses being formal in nature. The Additional Sessions Judge believed the evidence and convicted and sentenced the appellant as mentioned above. Aggrieved, the present appeal was filed. The learned Additional Sessions Judge has found that appellant entered the house of Pusa and committed rape on Km Sunita aged about nine years. Than Singh i W 2, Dal Chandra PW 3 and Hari Chand PW 4, who are witnesses of the locality, have turned hostile. They have denied the prosecution version about commission of the offence by the appellant, but it is significant that they do not deny about the appellant's arrest inside the house and this fact supports the version given by Km. Sunita PW 5, and her grandfather Pusa PW 1. The Additional Sessions Judge was, therefore, justified in believing the testimony of these two witnesses. Moreover, there was no reason why Pusa would have falsely implicated the appellant. The testimony of Km Sunita, a minor girl of about nine years, has been consistent. The Additional Sessions Judge has rightly recorded the finding of conviction which is liable to be confirmed. The conviction of the appellant under Section 376 IPC and Section 450 IPC is, therefore, confirmed.
(3.) AS regards the sentence, the Additional Sessions Judge has been harsh. It is proved from the evidence on record that the appellant was aged about 15 years at the time of the occurrence. The Additional Sessions Judge has also found that the age of the appellant was about 15 years when the report was lodged against him. His medical examination also supports this finding The age of the appellant being about 15 years, he is covered by U. P. Children Act, 1951. Section 27 of this Act provides : S. 27. Sentences that may not be passed on child. Notwithstanding anything to the contrary contained in any law, no Court shall sentence a child to death or transportation or imprisonment for any term or commit him to prison in default of payment of fine : Provided that a child who is twelve years of age or upwards may he committed to prison when the Court certifies that he is of so unruly, or of so depraved a character that he is not fit to be sent to an approved school and that none of the other methods in which the case may legally be dealt with is suitable. " Sections 29 and 30 of this Act provide that a child is to be committed to an approved school for stay till he attains the age of 18 years or for a shorter period for the reasons to be recorded in writing. Under Section 30 of the Act instead of directing any youthful offender to be detained in an approved school, he may be ordered to be (a) discharged after due admonition or (b) released on probation of good conduct and committed to the care of his parent or guardian or other adult relative or other fit person, on such parent, guardian, relative or person executing a bond, with on without sureties, as the court may require, to be responsible for the good behaviour of the youthful offender for any period not exceeding three years and for the observance of such other conditions as the Court may impose for securing that the youthful offender may lead an honest and industrious life. The learned Additional Sessions Judge has relied on the proviso to Section 27 of the Act quoted above. He found that the appellant being above the age of 12 years can be committed to prison as he is so unruly and of so depraved a character that he is not fit to be sent to an approved school. This finding of the learned Additional Sessions Judge cannot be upheld. There was no evidence before him to find that the appellant was of depraved character or that he was unruly and not fit to be sent to an approved school It was for the prosecution to lead evidence in support of the exception contained id this proviso. No evidence was led by the prosecution on the point of sentence. A single incident even though of a sexual nature, as the present one, was not enough to record a finding about the appellant that he was unruly or of depraved character. There is no previous conviction of the appellant. He has not been a history sheeter or accused in any case involving sex scandal. Thus there was no evidence before the Additional Sessions Judge to record a finding against the appellant as is laid down in the aforesaid proviso. Secondly, the appellant being a child as defined in Section 2 of the Act, he is protected by the Children Act. Instead of sending the appellant to an approved school under Section 29 of the Act, he can be suitably reformed. He should be released on probation of good conduct under Section 30 (b) of the Act. In the result, the appeal succeeds and is partly allowed. The order, dated 29-7-75 is modified. The conviction of the appellant under Section 376/450 IPC is confirmed, but instead of directing this youthful offener to be detained in an approved school, be is released on probation of good conduct and committed to the care of his lather or if lather is not alive, then to the care of his nearest adult relation on such person executing a personal bond of rupees two thousand with two sureties each in the like amount to the satisfaction of the Chief Judicial Magistrate concerned for being responsible for the good behaviour of the youthful offender tor a period of two years from the date of executing the bond with this condition that during this period of two years, the aforesaid guardian will carefully watch the behaviour and conduct of the youthful offender and, if necessary, seek guidance of the Chief Judicial Magistrate as and when necessary for securing that the youthful offender may lead an honest and industrious life. If such a bond is not executed within a period of one montn from his release, the Chief Judicial Magistrate concerned will send the youthful offender to the approved school to be detained there till he attains the age of 18 years. The appellant is on bail. His bail bonds are cancelled and sureties discharged. Appeal partly allowed.;