The main legal point established in the judgment is the retrospective effect of juvenile justice acts and the entitlement of juveniles to the benefits of the acts, even if the plea of juvenility was not raised before the trial court.

JUDGEMENT/ORDER :

1. Appellant having been convicted for the commission of offence punishable under section 376 RPC vide judgment dated 14.05.2013 and sentenced vide order dated 03.06.2013 to rigorous imprisonment for aterm of 10 years and also a fine of Rs. 50,000/- payable to the victim by the Court of learned Principal Sessions Judge Ganderbal (hereinafter called as 'Trial Court' for short) has challenged his conviction through the medium of this Criminal Appeal.

2. The appellant-convict had been charge-sheeted for the offence punishable under section 376 RPC by the Trial court vide order dated 28.12.2004, with the accusation that on 23.09.2004,the appellant-convict, at about 12 P.M., had forcibly raped PW-2 at Khurhama Ganderbal, who, however, denied the charge pleading innocence and the prosecution was directed to lead evidence.

3. The prosecution, in order to bring home the charge against the appellant-accused, examined 10 out of 12 cited prosecution witnesses and on conclusion of trial the appellant was convicted and sentenced vide impugned judgment/order.

4. During the pendency of this appeal, the appellant filed an application seeking bail, claiming the benefit under section 13 of The Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act 2013 (for short 'Act of 2013') while fairly conceding that no such plea was raised before the trial court.

5. This Court vide order dated 18.03.2014, while admitting the appellant-convict to interim bail, also directed learned Registrar Judicial of this Wing of the High Court to hold an enquiry and to take such evidence as may be necessary (but not on affidavit) to determine the age of the convict Sameer Nazir @ Ashiq Hussain S/o Nazir Ahmad Ahanger R/o Khurhama Ganderbal, as nearly as may be, on the date of the alleged commission of offence i.e. 23.09.2004.

6. Pursuant to the aforesaid order, learned Registrar Judicial filed the report dated 29.08.2014 after conducing thorough enquiry, and came to the conclusion that on the fateful day i.e., 23.09.2004, the appellant convict was 16 years 06 months and 08 days of age, having regard to the date of birth as 15.03.1988, as maintained by the Board of School Education and attaching the presumption of genuineness to it. This report has been accepted by this Court vide order dated 24.10.2019 and the appellant-convict was declared as juvenile.

7. Heard learned counsel for the parties, perused the material available on record and considered.

8. It is clear that the instant case has to be dealt with in accordance with the provisions contained in the Act of 2013 and consequently, the age of juvenility with reference to this case has to be taken as 18 years and not 16 years, which was the age of juvenility under the earlier Act of 1997, that was in force at the time of commission of the alleged occurrence. In this regard, I am fortified with the judgment of the Hon'ble Supreme Court rendered in a case titled Hari Ram v. State of Rajasthan & Anr. reported as (2009) 13 SCC 211, wherein the Supreme Court, after taking into consideration the effect of Section 20 of the Juvenile Justice Act, 2001 which is in para materia with Section 8 of the Act of 2013, came to the conclusion that the provisions of the Juvenile Justice Act, 2000 have been given retrospective effect and, accordingly, the Court held that a juvenile, who had not completed 18 years on the date of commission of the offence was also entitled to the benefits of the Act of 2000, as the provisions of Section 2(k) of the said Act had always been in existence even during the operation of the 1986 Act. As a corollary to the aforesaid ratio laid down by the Supreme Court, it can be safely held that a juvenile, who had not completed the age of 18 years on the date of commission of offence, was also entitled to the benefit of the Act of 2013, as if the provisions of Section 2(n) of the Act of 2013 had always been in existence even during the operation of the Act of 1997.

9. In view of th