Bombay HC Convicts Man Of Rape 22 Years Later But Refuses To Impose Sentence As He Was A Juvenile At The Time [Read Judgment]

The Bombay High Court on Thursday convicted Hemant Mittal, a 38-year-old man for rape, 22 years after the said crime was committed. However, the Court did not impose any sentence as Hemant was a juvenile at the time of the incident.

Division bench of Chief Justice Pradeep Nandrajog and Justice Bharati Dangre allowed the appeal filed by State government seeking conviction of the accused under Section 376 IPC and set aside conviction of the accused under Sections 363 (kidnapping) and 366A (procuration of a minor girl) of the IPC. Accused's appeal was also set aside.

Case Background

Hemant Mittal, the accused, was charged for having committed offences punishable under Sections 363, 366-A and 376 IPC. He was acquitted for offence punishable under Section 376 and convicted for the offence punishable under Section 363 and Section 366-A by the Sessions Court. He was sentenced to one-year rigorous imprisonment for kidnapping and 15 days simple imprisonment for the offence under Section 366-A IPC.

According to the victim's statement, she was a student of 9th standard in Air Force School. She met the accused in January, 1997 and he started threatening her to have friendship with her. Initially she avoided but later on responded to his calls. Finally, she eloped with the accused on August 27, 1997. They proceeded to Shirdi from Pune and spent one night in a lodge. After a couple of days, they shifted to another lodge where the accused forced her to remove clothes and had sexual intercourse with her. On August 31, 1997, the victim's mother and relatives found her and took her to Pune.

Victim was examined on September 2, 1997 and she was confronted with her statement recorded by the Investigating Officer under Section 161 CrPC in which she had not stated that on the intervening night of 30 and 31st August, 1997, the accused had forcible sexual intercourse with her. This is the primary reason for the rape acquittal.

Judgement

Advocate Abhishek Avchat appeared on behalf of the accused and relied upon Supreme Court's judgement in S. Varadarajan v. State of Madras &Anr to support his case. In the said judgement, with reference to the word 'takes' in Section 361 IPC, which defines kidnapping from lawful guardianship, the Supreme Court held that in such cases, there would be no enticement, where love leads the girl to run away from her parental house would not attract the offence of kidnapping from lawful guardianship.

One Dr.Kavita examined the victim and recorded her statement, she said-

"The hymen was found torn with inflammation and tenderness, suggesting sexual intercourse in the recent past."

Noting how this observation by Dr.Kavita was overlooked by the Sessions Court, the bench noted-

"The testimony of the prosecutrix and her statement recorded under Section 161 CrPC have to be evaluated by the Court in the context of a young girl eloping with a boy, with whom she was in love. Trapped by police when her parents lodged the complaint, she had a feeling of love and affection for the boy and caught hands down would only state to the police facts of her running away with the boy sans such acts committed by them which would attract penal laws. The pressure of the parents versus the love for the boy would make her speak half-truth. But when her custody was restored to the parent and as time passed by, she deposed the full truth.

Therefore, it has to be held that the Accused had sex with the prosecutrix with her consent, which would be irrelevant and has to be ignored for the reasons at the time of the incident the age of the prosecutrix was 14 years."

Although at the time of incident, the Juvenile Justice (Care and Protection of Children) Act, 2010 followed by the Act of 2015 had not come into force, Court cited the decision in Hari Ram vs. State of Rajasthan &Anr. and noted that the benefit of the said Acts has to be accorded to the accused.

Court said-

"As per clause (g) of sub-section (1) of Section 18 of the Juvenile Justice Act, the Accused can, at best, be directed to be sent to the Special Home for such period not exceeding three years so that the Accused can be reformed. It would be futile, therefore, to pass an order as contemplated by law for the reasons as of the year 2019, the age of the Accused is 38 years."

Thus, allowing the State's appeal seeking conviction of the accused for the offence of rape, Court noted-

"He is convicted for the said offence but we impose no sentence and do not direct the Accused to be sent to a Special Home to be kept for any period inasmuch since the object of law is to reform a juvenile accused. As of today, the accused is no longer a juvenile but the dichotomy would remain. His conviction will have to be treated with reference to the fact that he was a juvenile when the offence was committed. Thus, no sentence is imposed upon him for the said offence." 

Click Here To Download Judgment

[Read Judgment]