ANITA CHAUDHRY, J. - (1.) THIS is an appeal directed against the judgment dated 06.08.2002 passed by the Addl. Sessions Judge, Gurgaon. The Sessions Court had convicted the appellant for the offence punishable under Section 376 IPC and he was sentenced to rigorous imprisonment for 05 years along with a fine of Rs.10,000/ -. In default of payment of fine he was to further undergo rigorous imprisonment for a period of two years.
(2.) THE appellant was named in FIR No.253, registered at Police Station Bilaspur for commission of offences punishable under Section 376 IPC and Section 3 of the SC/ST Act. The facts are that on 14.09.1999 at about 4:00 PM, the prosecutrix, aged 12 years had gone to the fields to attend the call of nature. She returned home at 4:30 PM. Her family found her scared and she was crying and there were abrasions and injuries on her face and neck. PW9 Sunita had brought the child home. The child apprised her family that the accused had forcibly removed her clothes and had raped her. The father took the matter to the village Sarpanch but no action was taken and thereafter, the matter was reported to the police. The girl was medically examined. She was also sent for a ossification test. After the close of the prosecution evidence, the accused abjured the trial and pleaded false implication in his statement under Section 313 Cr.P.C. The trial Court accepted the statement of the prosecutrix and convicted the appellant to the sentence mentioned aforesaid. The counsel for the appellant has urged that the accused -appellant was a juvenile on the date of commission of offence and the occurrence had taken place in the year 1999 and the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as new Act) had been amended and the new Act had come into force and the accused came within the definition of juvenile and the plea of juvenility can be taken at any stage and for the first time even at the appellate stage. Reliance was placed upon Bharat Bhushan Vs. State of Himanchal Pradesh 2013(3) RCR (Criminal) 81 and Babla @ Dinesh Vs. State of Uttarakhand 2013(1) RCR (Criminal) 657. Continuing with the arguments, the submission on behalf of the appellant was that there was no need to send the matter back for passing orders on the quantum of sentence as the accused had already undergone 02 years, 11 months and 12 days of custody till he was released on bail as on 07.09.2002. It was urged that the incident was of the year 1999 and the Hon'ble Apex Court in Bharat Bhushan's case (supra) had held that it would not serve any purpose to send the matter back to the Juvenile Justice Board to pass a sentence after a gap of 18 years. It was urged that the facts of the present case were similar.
(3.) THE State counsel had placed the custody certificate on record according to which the appellant had undergone 02 years, 11 months and 12 days of actual custody when he was released on bail as on 07.09.2002.;