The Delhi High Court on Monday convicted and sentenced a minor boy under IPC and POCSO on the charges of raping a 16 yrs old girl, without taking into account the provisions of the Juvenile Justice Act, 2015.
Justice Vibhu Bakhru sentenced him to undergo 7 years imprisonment, the minimum punishment stipulated in the IPC and POCSO, as the convict had not raised the plea of juvenility, either before the Trial Court or the high court.
"The nominal roll of the appellant dated 09.07.2019 reflects that the appellant's age is 23 years. Thus, the appellant would be barely seventeen years old on the date of the incident. However, the appellant did not plead that he was a minor before the Trial Court nor was it urged before this Court.xxxIn view of the above, this Court modifies the sentence awarded to the appellant for committing an offence under Section 376 of the IPC and Section 4 of the POCSO Act to seven years of rigorous imprisonment instead of ten years as awarded by the learned Trial Court," the court held.
Under the JJ Act, rape is a 'Heinous offences' as it is punishable with minimum 7 yrs of imprisonment. In cases of Heinous offences alleged to be committed by a child above the age of sixteen years as on the date of commission of an offence (as in this case), Section 15 provides that the Juvenile Justice Board can conduct a preliminary assessment with regard to the mental and physical capacity of such child to commit such offence, the ability of the child to understand the consequence of the offence and the circumstances in which the said offence was allegedly committed. If the board finds that there is a need for trial of the child as an adult, he will be tried in a Children's Court.
The court also made a detailed analysis of the facts of the case and the evidence placed on record, to conclude that the prosecution's case was unreliable. He found that the testimony of the prosecutrix was shaky and there was no evidence on record that she had suffered any physical injury during the incident.
However, since the prosecutrix was a minor, the court observed that consent of the girl did not matter and the accused was straight off guilty of rape.
"There is no doubt that P was a minor at the material time and that the appellant had sexual intercourse with her resulting in her getting pregnant. Forensic evidence has clearly established that the appellant was the father of the infant delivered by P. In view of the above, it is established that the appellant is guilty of committing an offence punishable under Section 376 of the IPC," the court said.
Taking into account the feeble allegations of non-consensual sexual intercourse put by the prosecution and noting that the accused was also a minor at the time of alleged incident, even though he did not claim juvenility, the high court was inclined to impose minimum punishment, i.e., 7 years.
"Considering the above and the age of the appellant as well as the fact that he has no prior criminal antecedents, this Court considers it apposite that he should be awarded the minimum sentence," it said.
Case Title: Manoj v. State
Case No.: Crl A. 576/2017
Quorum: Justice Vibhu Bakhru
Appearance: Advocate Aishwarya Rao (DHCLSC) (for Petitioner); APP Kusum Dhalla (for State)
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