Patna High Court
Abhishek Kumar @ Nanhaka vs The State Of Bihar on 22 January, 2025
Author: Nawneet Kumar Pandey
Bench: Ashutosh Kumar, Nawneet Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.870 of 2023
Arising Out of PS. Case No.-55 Year-2018 Thana- MAHILA PS District- Jehanabad
ABHISHEK KUMAR @ NANHAKA son of Ranvijay Prasad @ Nanhku
Village- Sri Bigha Po Ps- Sakurabad Dist- jehanabad
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur
Ms. Vaishnavi Singh
Mr. Ritwik Thakur
Mr. Pranshu Singh
For the State Mr. Abhimanu Sharma APP
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE NAWNEET KUMAR PANDEY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE NAWNEET KUMAR PANDEY)
Date : 22-01-2025
This appeal has been preferred by the
appellant under Section 374(2) of the Code of
Criminal Procedure for setting aside the
judgment of conviction 29.05.2023 and order of
sentence dated 31.05.2023 passed by the
learned 1st Additional Sessions Judge-cum-Special
Judge Children’s Court, Jehanabad, in Children
Case No. 03 of 2019, arising out of Jehanabad
Mahila P.S.Case No. 55 of 2018, whereby the
appellant has been convicted and sentenced as
Patna High Court CR. APP (DB) No.870 of 2023 dt.22-01-2025
2/17
under:-
Conviction Sentence
under Imprisonment Fine (Rs.) In default
Section of fine
376(AB) of RI for 20 years 50,000/- RI for three
the IPC months
4 POCSO Act RI for 20 years 50,000/- RI for three
months
2. The victim is a minor girl of 7-8
years of the age. The allegation against the
appellant, who himself is a juvenile, is that he
committed rape/penetrative sexual assault upon
the victim.
3. The maternal grand-father of the
victim (PW-3) lodged FIR on 21.10.2018 at
8.50.pm, stating therein that on 21.10.2018 at
about 2.00 p.m., the appellant who is his co-
villager was requested to park a motorcycle in
courtyard of the informant and thereafter to give
the keys to his grand-daughter (the victim). The
victim in order to take the keys, went there and
the appellant committed rape with her.
4. The FIR was registered under Section
376 of the IPC and Section 4 of the POCSO Act.
After the investigation, the charge-sheet was
Patna High Court CR. APP (DB) No.870 of 2023 dt.22-01-2025
3/17
submitted and cognizance was taken. The
charges were framed on 23.09.2019 under
Section 376(AB) of the IPC and Section 4 of the
POCSO Act.
5. Eight prosecution witnesses
including, the victim (PW-7), her mother (PW-4),
her maternal grand-father (PW-3/informant), her
maternal grand-mother (PW-1), the doctors who
conducted the medical examinations (PW-5 and
6) have been examined on behalf of the
prosecution.
6. The followings are the documentary
evidences adduced on behalf of the prosecution.
Ext.1 Written application
P-2/PW5 Medical report of the
victim
P-3/PW6 Medical report of the
victim regarding age
assessment
P-4/PW6 Signature of Dr.
Ramadhar Sharma on
the medical report of
the victim
P-5/PW7 Signature of victim on
the statement u/s 164
Cr.P.C.
P-6/PW8 Endorsement on the
written report
Patna High Court CR. APP (DB) No.870 of 2023 dt.22-01-2025
4/17
P-7/PW8 Formal FIR
P-8/PW8 Forwarding letter
P-9/PW8 Arrest memo
P-10 Statement of the
victim recorded under
Section 164 Cr.P.C
7. No witness has been examined on
behalf of the defense, nor any documentary
evidence has been adduced on his behalf.
8. Assailing the judgment of conviction
and order of sentence, Mr. Ajay Kumar Thakur,
the learned counsel for the appellant has
submitted that the appellant is a juvenile. Vide
order dated 19.02.2018, the Children’s Court
assessed his age as 16 years 8 months. Similarly,
the Juvenile Justice Board (hereinafter referred to
as ‘the Board’) has also held enquiry and vide
order dated 08.12.2021, the Board assessed the
age of the appellant as 16 years six months and
14 days. Since the appellant was a juvenile, the
preliminary assessment of the appellant was
mandated by Section 15 of the Juvenile Justice
(Care and Protection of Children Act), 2015
(hereinafter referred to as ‘the Act, 2015’), for
Patna High Court CR. APP (DB) No.870 of 2023 dt.22-01-2025
5/17
assessing the mental and physical capacity to
commit such offence and ability to understand
the consequences of the offence and the
circumstances, in which he committed the
offence. The required preliminary assessment
was not done by the Board, and without the
preliminary assessment, the appellant was tried
as an adult by the Children’s Court. It has further
been submitted that the failure to conduct
preliminary assessment, as required under
Section 15 of the Act, 2015, has prejudiced the
interest of the appellant adversely, due to which
the trial has vitiated.
Section 15 of the Act, 2015 is being
extracted hereinbelow:-
15. Preliminary assessment
into heinous offences by
Board.-(1) In case of a heinous
offence alleged to have been
committed by a child, who has
completed or is above the age of
sixteen years, the Board shall
conduct a preliminary
assessment with regard to his
Patna High Court CR. APP (DB) No.870 of 2023 dt.22-01-2025
6/17
mental and physical capacity to
commit such offence, ability to
understand the consequences of
the offence and the
circumstances in which he
allegedly committed the offence,
and may pass an order in
accordance with the provisions of
subsection (3) of Section 18:
Provided that for such an
assessment, the Board may take
the assistance of experienced
psychologists or psycho-social
workers or other experts.
Explanation. For the purposes
of this section, it is clarified that
preliminary assessment is not a
trial, but is to assess the capacity
of such child to commit and
understand the consequences of
the alleged offence.
(2) Where the Board is satisfied
on preliminary assessment that
the matter should be disposed of
by the Board, then the Board
shall follow the procedure, as far
as may be, for trial in summons
case under the Code of Criminal
Procedure, 1973 (2 of 1974):
Patna High Court CR. APP (DB) No.870 of 2023 dt.22-01-2025
7/17Provided that the order of
the Board to dispose of the
matter shall be appealable under
sub-section (2) of Section 101:
Provided further that the
assessment under this section
shall be completed within the
period specified in Section 14.
9. The learned counsel has submitted
that in case of Ajit Gurjar Vs. The State of
Madhya Pradesh (Cr. Appeal No. 3023 of
2023), the Hon’ble Supreme Court had set aside
the order of conviction and sentence only
because the mandatory provisions of Sections 15
as well as Section 19(1) of the Act were not
complied with. Relying upon the decision of
Ajeet Gurjar (supra), the Hon’ble Supreme
Court in case of Thirumoorthy Vs. State
represented by the Inspector of Police Cr.
Appeal, arising out of SLP. (Crl.) No. 1936
of 2023), held that holding of an enquiry under
Sections 15 and 19(1) of the Act, 2015 is
mandatory; non-compliance whereof is a gross
Patna High Court CR. APP (DB) No.870 of 2023 dt.22-01-2025
8/17
violation of the mandate of the Act, 2015, and
the entire proceeding is vitiated due to non-
compliance of this mandatory provision. The
Hon’ble Supreme Court has taken the similar
view in case of Shilpa Mittal Vs. State of NCT
(AIR 2020 SC 405 and also the Division Bench
of this Court in case of Manoj Bhagat Vs. The
State of Bihar Cr. Appeal (DB) No. 143 of
2018.
10. The learned counsel for the
appellant has submitted further that alongside
this fatal defect, a number of contradictions are
also there in depositions of the witnesses. It has
also been submitted that the medical
examination of the appellant was not conducted,
thereby the mandatory provision of Section 53-A
of the CrPC has been violated. It has also been
submitted that except the interested witnesses,
not a single independent witness has supported
the case of the prosecution. It has also been
submitted that the allegation of penetrative
sexual assault is not corroborated by the medical
Patna High Court CR. APP (DB) No.870 of 2023 dt.22-01-2025
9/17
evidence, since there is no evidence, in this
regard.
11. Per Contra, Mr. Abhimanyu Sharma,
the learned APP for the State, has submitted
that, as per medical report, the age of the victim
is 7-8 years. Her hymen was found ruptured,
which suggests that sexual penetrative
assault/rape was committed against her. On her
private part, abrasion and redness were found
which corroborates the allegation. The victim has
fully corroborated the allegation, which was
confirmed by the other witnesses as well as by
the medical evidence.
12. The informant (PW-3) is the
maternal grand-father of the victim. He deposed
that his wife/PW-1 asked the appellant to park
the motorcycle in courtyard and to return the
keys. The victim followed the appellant to dalan,
where he committed rape upon her. She came
weeping and told that the appellant had
committed rape upon her. She was brought to
Sakurabad Hospital, wherefrom she was referred,
Patna High Court CR. APP (DB) No.870 of 2023 dt.22-01-2025
10/17
without examination, to Sadar Hospital,
Jehanabad. She was treated there. The
information was transmitted to Mahila Police
Station, whereafter the police arrived at the
hospital and the informant lodged the FIR. He
identified his signature on written application,
which has been marked as exhibit-1.
During his cross-examination, this
witness has stated that he had not mentioned in
the FIR that his wife asked the appellant to park
the motorcycle. This witness was not present in
his dalan, rather he was present at his darwaza.
13. PW 2 is the mother of the victim.
She deposed that the appellant gave five rupees
to the victim for toffee and after kissing her, he
committed the act after undressing her. The
victim was crying and complaining about
inflammation on her private parts while
urinating. This witness also noticed injury on the
private parts of the victim.
14. PW-5 is Dr. Renu Singh, who
examined the victim. She found redness in
Patna High Court CR. APP (DB) No.870 of 2023 dt.22-01-2025
11/17
posterior part of vagina. Hymen was found to be
ruptured. The victim was of the age of 7-8 years.
15. PW-6 is Dr. Binod Kumar Singh,
who is one of the members of the Medical Board,
which conducted the age determining
examination of the victim and found her age
between 7-8 years. The medical reports have
been marked as Exts.P-3 and P-4.
16. PW-7 is the victim herself. she
stated that her maternal grand-mother called the
appellant and asked him to park the motorcycle
in the courtyard. The grandmother also asked the
victim to receive the keys from the appellant.
The appellant gave some money to the victim for
chocolates. When she went to the dalan, the
appellant gave her chocolate. He, after kissing
her thrice, inserted his hand into her pant. She
felt pain and cried. The appellant commanded
the victim not to disclose the incident to anyone.
When she went to bathroom, she felt pain. She
told about the entire occurrence to her mother
whereafter she was brought to the hospital.
Patna High Court CR. APP (DB) No.870 of 2023 dt.22-01-2025
12/17
17. PW-8 is the Investigating Officer.
On her statement, the FIR and endorsement
thereon have been exhibited. She conducted the
investigation and, after finding evidences, she
submitted charge-sheet against the appellant.
18. We have perused the impugned
judgment of the Trial Court and the materials
available on record. We have given our
thoughtful consideration to the rival submissions
advanced on behalf of the parties.
19. It is an admitted fact that the age
of the appellant has been determined by the
Children’s Court and the Board as 16 years 8
months.
Section 2 (35) of the Act, 2015,
defines the word ‘Juvenile’ as a child below the
age of 18 years.
20. The Act of 2015 was enacted after
repealing the old special legislation regarding the
inquiry for an offence committed by a juvenile,
called as the Juvenile Justice (Care and Protection
of Children) Act, 2000. The new legislation, the
Patna High Court CR. APP (DB) No.870 of 2023 dt.22-01-2025
13/17
Act, 2015 is a complete code, in which the entire
process of enquiry regarding an offence
committed by a juvenile has been provided. The
provision for bail and the maximum punishment
which can be awarded to a juvenile have also
been provided in this Act. The preamble of the
Act, 2015 declares the object of this enactment
which is to provide care and protection to a child
in conflict with law by catering to their basic
needs through proper care, protection,
development, treatment, social re-integration, by
adopting a child-friendly approach in the
adjudication and disposal of matter in the best
interest of children. The preamble itself shows
that the object of the enactment is the
paramount consideration of the best interest of
the child.
21. In the Act, 2015, a special
provision has been made for trial/inquiry of a
child in conflict with law, if he is above the age of
16 years and he commits a heinous offence.
22. Section 15 of the Act, 2015 says
Patna High Court CR. APP (DB) No.870 of 2023 dt.22-01-2025
14/17
that if a child in conflict with law, is above the
age of 16 years and he commits a heinous
offence, the Board shall conduct a preliminary
enquiry for assessing the mental and physical
capacity of the felony to commit to such offence
as well as the ability to understand the
consequences of the offence and also the
circumstances, in which he committed the
offence.
23. From bare perusal of Section 15 of
the Act, 2015, it is clear that for compliance of
the mandatory provision given therein, two pre-
conditions must exist: (i) the person must be a
juvenile above 16 years of the age and (ii) there
must be allegation that he had committed
heinous offence.
The word ‘heinous offence’ has been
defined in Section 2(33) of the Act, 2015, which
means that heinous offence is an offence which
is punishable with the imprisonment for 7 years
or more.
Section 2 (33) of the Act, 2015 is
Patna High Court CR. APP (DB) No.870 of 2023 dt.22-01-2025
15/17
being extracted hereinbelow:-
“2(33). “heinous offences”
includes the offences for which the
minimum punishment under the
Indian Penal Code (45 of 1860) or
any other law for the time being in
force is imprisonment for seven
years or more.”
24. In the present case, the offence
committed by the appellant is heinous within the
definition of Section 2(33) of the Act, 2015 and
the appellant is above 16 and below 18 years of
the age, as determined by the Board as well as
by the Children’s Court. As such, the preliminary
assessment required under Section 15 of the Act,
2015, was necessary,
25. Section 18(3) of the Act, 2015
provides that if the Board, after preliminary
assessment under Section 15, passes an order
that the child should be tried as an adult, then
the Board may pass an order for transfer of the
trial of the case to the Children’s Court having
jurisdiction to try such offence. This provision
Patna High Court CR. APP (DB) No.870 of 2023 dt.22-01-2025
16/17
shows that no case shall be tried by the
Children’s Court, unless it is transmitted by the
Board after conducting the preliminary enquiry,
required under Section 15 of the Act, 2015.
26. In the instant case, the Children’s
Court conducted the trial without the case being
transmitted to it by the Board under Section
18(3) of the Act, 2015. In this way, the
mandatory provisions of Sections 15 and 18(3) of
the Act, 2015 have been violated.
27. The Hon’ble Supreme Court in
cases of Ajeet Gurjar (supra), Thirumoorthy
(supra) and Shilpa Mittal (supra), considered
the effect of non-compliance of the mandatory
provision of Sections 15, 18(3) and 19(1) of the
Act, 2015 and held that non-observance of these
provisions is fatal to the trial and the trial
vitiates.
28. We are of the considered view that
non-compliance of Sections 15 and 18(3) of the
Act, 2015 has caused prejudice to the interest of
the appellant, vitiating the entire trial.
Patna High Court CR. APP (DB) No.870 of 2023 dt.22-01-2025
17/17
29. On the basis of the above-
mentioned observations, the judgment of
conviction 29.05.2023 and order of sentence
dated 31.05.2023 passed by the learned 1st
Additional Sessions Judge-cum-Special Judge
Children’s Court, Jehanabad, in Children Case No.
03 of 2019, arising out of Jehanabad Mahila
P.S.Case No. 55 of 2018 is set aside.
30. Consequently, the appeal is
allowed and the appellant is directed to be set at
liberty, if not wanted in any other case.
(Nawneet Kumar Pandey, J)
(Ashutosh Kumar, ACJ)
HR/-
AFR/NAFR NAFR CAV DATE 09.01.2025 Uploading Date 22. 01.2025 Transmission Date 22. 01.2025
[ad_1]
Source link