IMPORTANT POINT
Effect of Act 2000 on pending proceeding under Act 1986.

Judgment :-

T.S. Thakur, J.

1. Delay condoned.

2. Leave granted.

3. These appeals arise out of judgments and orders dated 8th April, 2010 and 30th April, 2010 passed by the High Court of Himachal Pradesh at Shimla whereby Criminal Appeal No.406 of 1995 has been allowed, the order of acquittal passed by the trial Court set aside, the appellant convicted for an offence punishable under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of five years besides a fine of Rs.50,000/-. In default of payment of fine, the appellant has been directed to undergo further imprisonment for a period of one year.

4. The appellant was charged with commission of an offence of rape upon a girl hardly 11 years old while she was working in the fields along with another girl aged around 10 years in Village Kanda, District Shimla, Himachal Pradesh. At the trial, the prosecution examined not only the prosecutrix who supported the charge but also other witnesses including PW-2-her companion whose name is withheld to protect her identity and who had escaped an attempted assault by the co-accused, Dinesh Kumar. An alarm raised by PW-2 appears to have attracted the attention of PW-3-Piar Devi, mother of PW-2, who had rushed to the spot to rescue the girls, whereupon both the accused appears to have fled away. PW-5-Misru-the father of the prosecutrix and PWs-7, 8 and 9 namely Dr. Ajay Negi, Dr. Suresh Bansal and Dr. D.C. Negi were also examined at the trial all of whom have supported the prosecution case in their respective depositions. The trial Court, however, came to the conclusion that the prosecution had failed to prove its case against the appellant, the deposition of the witnesses mentioned above notwithstanding and, accordingly, acquitted both the accused persons of the charges framed against them.

5. Criminal Appeal No.406 of 1995 was then filed by the State of Himachal Pradesh against the order of acquittal to assail the view taken by the trial Court qua the appellant as also his companion Dinesh Kumar. The High Court has by its judgment and order dated 8th April, 2010 allowed the appeal in part, reversed the view taken by the trial Court and convicted the appellant for rape, punishable under Section 376 of the Indian Penal Code. As regards Dinesh Kumar, the High Court was of the view that the order of acquittal passed in his favour was justified. The High Court was of the view that the prosecution story was reliable and inspired confidence not only because of the inherent worth of the deposition of the prosecutrix but also because of the fact that her story was fully corroborated by PW-2, the other girl who escaped from the clutches of Dinesh Kumar, the co-accused and that of PW-3 Piar Devi who had rushed to the place of occurrence to rescue the victim after hearing an alarm raised by her daughter. More importantly, the High Court found that the deposition of Dr. Suresh Bansal who had examined the prosecutrix establish the commission of rape upon the victim. The appellant was on such re-appraisal of evidence convicted under Section 376 of the Indian Penal Code.

6. The High Court next examined the question of sentence to be awarded to the appellant and by separate order dated 30th April, 2010 sentenced the appellant to rigorous imprisonment for five years and a fine of Rs.50,000/- and a default sentence of one year as already noticed above. What is important is that while doing so the High Court noticed and rejected the contention urged on behalf of the appellant that he was only 16 years and 4 months old at the time offence was committed, hence, entitled to the benefit of provisions of Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000. Relying upon the decision of a Constitution Bench of this Court in Pratap Singh v. State of Jharkhand and Anr. (2005) 3 SCC 551, the High Court held that the benefit of the Act was not legally available to the petitioner.

7. The High Court also rel